KOUSER SULTANA Vs. SYED MUSNTAQ

JUDGEMENT

(1.) The 1st petitioner is the wife of the 1st respondent and petitioners 2 and 3 are their children. The marriage between the 1st petitioner and the 1st respondent took place on 14-1-85 at New Malakpet, Hyderabad. After a few months the 1st respondent and his parents and sisters started harassing the 1st petitioner. On 15-5-88 the wife gave a complaint to the police againsx her husband for illtreatment and after investigation the Police filed a charge sheet against the 1st respondent and others under Sections 498-A and 406 IPC read with Sec. 34 IPC and Sections 4 and 6 of the Dowry Prohibition Act before the Mahila Court, Hyderabad and the said case is still pending trial before the said Court. On 13-9-88 the wife filed an application for maintenance under Section 125 (l)Cr PC PWs 1 and 2 were examined on behalf of the wife and the 1st respondent has examined as R-W 1. The learned IV Metropolitan Magistrate Hyderabad framed Point No. 1 as to "whether the petitioner No. 1 contended to be the wife of the respondent and is entitled for the maintenance under Section 125 Cr P C. On a consideration of the entire evidence on record the learned Magistrate came to the conclusion that the divorce given by husband on 4-6-88 is valid and therefore the 1st petitioner teased to be the wife of the 1st respondent from 4-6-8$ aad she was not entitled to claim any maintenance. However the learned Magistrate granted maintenance at Rs. 400/- per month to petitioners 2 and 3 each from the date of the order. While granting maintenance to petitioners 2 and 3 the learned Magi, strate took into consideration the income potentiality of ths husband. Since the status of the parties has been brought into the evidence and the minimum requirement of putting them in good school is there, the amount of maintenance that has been granted by the learned Magistrate can easily be justified and it does not call for any interference.

(2.) The next and most important Point that has been raised on behalf of the wife is that since the Siahanama Ex. P 1 provides an arbitration clause and since the parties agreed to abide by the arbitration the husband's right to pronounce 'talaq' cannot be given effect to. In support of that contention the learned counsel for the petitioners relied upon a passage from the book. 'The meaning of the Glorious Koran' an Explanatory Translation by Mohammed Marmadke Pickthall :

(3.) The law on this aspect is very clear. A marriage in Muslim Law is a civil contract and is not a sacrosanct : A leading judgment of Mahamood J, in Khadir Vs. Saleema (1) (1886) 8 Allahabad 149 at pages 154 and 155 was considered to be a classic one on this subject. Marriage confers important rights and imposes obligations both on the husband as well as on the wife. Some of these rights and obligations can be altered by an agreement of the parties. A contract of marriage and the conditions of the contract can be enforced by the Court of Law unless they are unlawful and opposed to public policy. The COntract of marriage can be terminated (i) by the husband unilaterally in the prescribed form which is called 'Talaq' (ii) by the wife under specified conditions which is called 'qula' or Mubarat', and the specified case of delegated divorce (iii) by judicial proceedings under Dissolution of Muslim Marriage Act 1939.