DAGDU CHOTU PATHAN Vs. RAHIMBI DAGDU PATHAN

JUDGEMENT

(1.) THE petitioner was married to the respondent No. 1 Rahimbi; and they begot three children from the said wedlock. However, the respondent No. 1 approached the Judicial Magistrate, First Class at Latur by an application under section 125 of the Criminal Procedure Code for maintenance for herself and for the three children claiming that the petitioner neglected her and the children after he married one Khamrunbee from whom also he begot children. He neglected the applicants and refused to maintain them during the last three years before she approached the learned Magistrate.

(2.) ON receipt of summons, the petitioner appeared before the Magistrate and filed a written statement opposing the claim made by the applicants i. e. the present respondent Nos. 1 to 4. He claimed that he had given Divorce (Talaq) to the respondent No. 1 on 24th February, 1996 in the presence of Qazi and two witnesses and thereafter he had performed the second marriage with Khamrunbee. He also stated that one of the witnesses was a Muslim where as the other one was a Hindu. He, therefore, prayed that the application filed under section 125 of the Criminal Procedure Code be dismissed. This plea was rejected by the learned 2nd Joint Judicial Magistrate, First class at Latur vide his judgment and order dated 21st November, 1998 and the maintenance application filed by the respondent Nos. 1 to 4 came to be allowed. The learned Magistrate held that the fact of Talaq must be proved and it cannot be accepted by the Court merely on pleadings in the written statement. In this regard, the learned Magistrate relied upon a judgment of this Court (Single Judge) in the case of (Mehtabbi w/o Shaikh Sikandar v. Shaikh Sikandar) 1995 (3) Bom. C. R. 433. This order, passed by the learned Magistrate, has been impugned in the instant petition.

(3.) WHEN this petition came up for hearing alongwith Criminal Writ Petition No. 308 of 1999 before the learned Single Judge (Vagyani, J.) on 7th February, 2001 it was noted that a Division Bench of this Court (A. V. Savant and T. K. Chandrashekhara Das, JJ.) in the case of (Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh) 1993 (3) Mh. L. J. 964 had held that the view taken by the learned Single Judge in the case of Mehtabbi (supra) was not a good law and when a plea of Talaq is taken in the written statement filed before the Court, the wife is deemed to have been divorced from the date such a statement was made in the written statement though the husband takes the plea of Talaq on any date earlier to the filing of such a written statement and was not required to prove the factum of divorce by leading evidence before the Court.