WAJED KHAN S O MAHEBOOB KHAN Vs. MOHASINABI

JUDGEMENT

(1.) HEARD learned Advocate for the applicant, learned Advocate for the respondent No. 1 and learned A. P. P. for respondent No. 2/state.

(2.) THE proceedings under section 125 Cri. P. C. had been initiated by respondent No. 1 for self and on behalf of her minor son on 7-2-1991. In these proceedings, the present applicant took the stand that he had divorced the respondent No. 1 by giving Talaqnama and as such in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called the said Act), the application for maintenance was not maintainable and as such he was not liable to pay maintenance. This objection was overruled by the Magistrate as he found that the Talaqnama was not valid since at the time of Talaq, in question, was given, the respondent was in menstruation. Even though the Magistrate held that the original applicant, namely the present respondent No. 1 had failed to prove ill treatment yet the maintenance of Rs. 200/- was awarded in favour of the present respondent. Besides this, maintenance of Rs. 150/- was awarded in favour of the minor child of the respondent No. 1. This order was challenged in Criminal Revision by the present applicant before the Sessions Court. By judgment dated 4-2-1997, the learned Additional Sessions Judge held that the Talaqnama dated 17-7-1991 was invalid as a result of which the provisions of the said Act were not applicable and the present respondent was entitled for maintenance. The revision was accordingly rejected. The applicant has now come under section 482 Cri. P. C. for quashing the judgments of two courts below with reference to the maintenance awarded in favour of respondent No. 1. Learned Advocate for the applicant has submitted before me that the order of maintenance in favour of the minor child of respondent No. 1 is not challenged in this application.

(3.) THE main ground of the challenge in this application is that the findings of the courts below that the Talaqnama dated 17-7-1991 is invalid is perverse in the light of law on the subject and if the Talaqnama is held to be valid in the eyes of law then application under section 125 Cri. P. C. cannot be entertained in view of the provisions of the said Act. Learned Advocate for the applicant has mainly relied upon Full Bench judgment of this Court in (Karim Abdul Rehman Shaikh v. Sahehnaz Karim Shaikh and others), reported in 2000 (5) Bom. C. R. (F. B.)758 : 2000 (II) D. M. C. 634. Besides this, learned Advocate for the applicant has also relied upon a Division Bench judgment of this Court in (Saira Bano v. Mohd. Aslam Ghulam Mustafa Khan Sherwani and another), reported in 2000 (Supp.) Bom. C. R. (N. B.)92 : 2000 (1) Civil L. J. 642 wherein it is held that the stand taken in written statement or in any application or in witness box that the husband has divorced his wife unless supported by evidence cannot be regarded as proof of divorce. On the question of granting of divorce in the state of Tuhr, reliance has been placed on judgment of learned Single of this Court in (Banu and another v. Kutubuddin Sulemanji Vimanwala), reported in 1995 (2) Bom. C. R. 110 : 1995 (II) D. M. C. 390, wherein it is held that divorce by husband to his wife cannot be declared void on the ground that husband had not proved that wife was in her periods on date of Talaq particularly when wife is staying away from him. On the strength of above authorities, it is urged that since the applicant had validly pronounced Talaq to his wife namely respondent No. 1, the application for maintenance is not maintainable and the respondent No. 1 is not entitled to claim any maintenance under the provisions of section 125 Cri. P. C. contained in Chapter IX of the Code of Criminal Procedure.