ALHAJ EZAJ HASAN Vs. SHABANA ANJUM

JUDGEMENT

(1.) By this application, revision petitioner (husband) challenged legality, propriety and correctness of the impugned order passed by learned Additional Sessions Judge, Amravati on 23.1.2004 in Criminal Revision No. 10 of 2003 whereby the revision application was allowed and the respondent- wife was granted monthly maintenance of Rs. 750/- from the date of application plus costs of Rs. 250/- for the proceedings. Earlier, learned trial Magistrate who heard an application under Section 125 of the Code of Criminal Procedure in Misc. Criminal Application No. 231 of 2002, claim of respondent-wife for maintenance for herself was rejected. However, claim for maintenance for child was granted in the sum of Rs. 350/- per month from the date of application plus Rs. 1500/- towards costs of the proceedings. Aggrieved by refusal to grant maintenance to wife, wife had challenged refusal to grant maintenance in Criminal Revision No. 10 of 2003 which was decided by the impugned judgment and order.

(2.) It is the grievance of the revision applicant that the applicant had pronounced Talaq (divorce) in accordance with Muslim Law and, therefore, after divorce, his wife was not entitled to claim maintenance under Section 125 Cr.P.C. It is further submitted that ruling cited in Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan, 2002 3 MhLJ 602is not applicable in the facts and circumstances of the present case on the ground that Talaq was pronounced as per command of Quaran and, therefore, decision of the Full Bench was not applicable. It is further submitted that learned Additional Sessions Judge wrongly observed regarding postal endorsement and communication sent under postal certificate. According to learned counsel for revision applicant, the presumption of communication of Talaq ought to have been drawn considering the refusal to accept notice sent from the husband. It is, therefore, contended that the impugned judgment and order is improper, unjust and incorrect.

(3.) Learned counsel for respondent-wife submitted that apart from the Full Bench Judgment referred to in the impugned judgment and order in Dagdu Pathan's case , Bombay High Court in the ruling of Dilshad Begaum Ahmadkhan Pathan v. Ahmadkhan Hanifkhan & anr, 2007 2 DMC 738held that valid and legal Talaq ought to be proved by a factum of pronouncement of Talaq. It is necessary that pronouncement of Talaq must be proved by sufficient evidence to be considered in the light of Full Bench decision in Dagdu Pathan's case . In other words, requirement of law must be met by evidence led on the part of husband regarding preconditions of arbitration for reconcilliation and communication of reasons for Talaq. The husband is required to convey reasons for divorce, appoint arbitrator who resort to conciliation proceedings so as to bring reconciliation between the parties and failure of such reconciliation to establish a situation where it was impossible for the marriage to continue. This is required to be proved as condition precedent for the husband's right to give Talaq to his wife in accordance with Muslim Law. The requirements of law are to be satisfied particularly when wife disputes the factum of Talaq or the effectiveness of Talaq or legality of Talaq in a competent court of law. In other words, therefore, mere statement made in writing before the Court or in oral depositions regarding the Talaq having been pronounced sometimes in the past is not sufficient to hold that the husband has divorced his wife and such a divorce is in keeping with the dictates of Islam.