KHURSHID KHAN AMIN KHAN Vs. HUSNABANU

JUDGEMENT

(1.) This Application under Article 227 of the Constitution, would have been rejected summarily, without recording the following reasons, but for fact that the learned Sessions Judge, Ahmednagar, while delivering his judgment, on August 27, 1975, dismissing the Criminal Revision Application, filed by the husband, erroneously described the order of the Magistrate, as awarding maintenance to the wife, Husnabanu respondent No. 1 at Rs. 50/- per month though the learned Judicial Magistrate, First Class had ordered, on the application under section 125 of the Code of Criminal Procedure, 1973, that the wife is entitled to maintenance at the rate of Rs. 75/- per month from the date of the application i.e. April 18, 1974; and the child, respondent No. 2 is entitled to a further sum of Rs. 50/- per month beginning from that date. It is difficult to understand how the learned Sessions Judge committed such a manifest mistake while describing the order passed by the learned Magistrate.

(2.) Now that we are delivering this judgment, we may as well deal with the contentions ingeniously raised by Mr. Hussein, the learned Counsel for the appellant, husband relying on the principles of Muslim Law, that a divorced wife under that law is entitled to maintenance only during the period of iddat i.e. the period, during which it is incumbent upon the woman, whose marriage has been dissolved by divorce or declaration, to remain in seclusion and abstain from marrying another husband.

(3.) We are here only concerned with divorce. Iddat period of divorce is said to be "three courses" which expression appears to have been identified as three monthly courses. It is well-known that the abstention was imposed to ascertain whether the divorced wife was pregnant by the divorcing husband, so as to avoid confusion of parentage. See (Zumin Ali v. Aziz-in-nissa) 1933(55) All. 139, Mulla, Principles of Mohomedan Law, Seventh Edition, p. 324. Scientifically it is difficult to understand why a woman should wait for three monthly courses unless by "three courses" is meant three days of menstruation in the month after divorce, before it can be ascertained whether she is pregnant.