SYED JAMALUDDIN Vs. VALIAN BEE

JUDGEMENT

(1.) This Criminal revision case gives rise to a short question of law viz , whether the statement or averment made by a Muslim husband In a counter before a Magistrate in an application by the wife for maintenance under section 486 of the Criminal Procedure Code, to the effect that he had already divorced his wife, would amount to a valid divorce at least with effect front the date when the statement or averment was made.

(2.) In order to appreciate the scope of the question, it is necessary to briefly state the material facts which gave rise to the question : The lit respondent herein had married the petitioner about 20 years back. They have a sen and a daughter. The petitioner herein ill-treated and tortured the 1st respondent wife after marrying a third wife. Therefore, she accompanied by her children left her husband's house on 18-9-1971 and resided with one Ghulam Hussain who Is no other than her son through her first husband. Registered notice claiming maintenance for her and her two children was issued by the wife to the husband through a lawyer on 6-12-1971. Thereafter, the 1st respondent an her son and daughter filed M C. No, 2/1972 in the Court of the VII Ci'y Magistrate, Hyderabad, claiming maintenance under section 488 Cr.P.C. In the counter filed by the husband, it was averred that his wife had left his house in September 1971 without obtaining his permission and subsequently her children joind her, that she was residing with one Maqbool, a police constable, and on 6-12- 1971 he had issued a notice to his wife asking her to come and join him and as she did not respond to his request favourably, he wen ton December 12, 1971 to the house where she was residing, with two elders and in their presence divorced his wife and paid a sum of Rs, 75/- to her towards her maintenance fo- Iddat period, and that she is no longer his wife and. therefore, she is not entitled for maintenance The claim for the maintenance of his son and daughter also was contested on the ground that his son was employed In a workshop at Feel khan a on a monthly salary of Rs. 30/- and that his (Petitioner's) salary is hardly sufficient to maintain his third wife and her two children.

(3.) On a consideration of the material on record, the Magistrate found that the husband failed to prove that he divorced his wife on 12-12-1971 in the presence of two elders and paid a sum of Rs 75/- to her towards her maintenance for Iddat period and, rejecting his other objections awarded maintenance at the rate of Rs. 40/-. 15/- and 20/ per mensum to the wife, son and daughter respectively. The order of the Magistrate awarding maintenance to the son and daughter was allowed to become final by the husband, But, however, he preferred Criminal Revision Petition No, 103/72 before the Chief City Magistrate-cum-Additlonal Sessions Judge and District Magistrate (Judi), Hyderabad, questioning the correctness, legality and propriety of the order of the Magistrate In granting maintenance to the wife. Relying upon the decision of the erstwhile Hyderabad High Court in Wahab Ali vs. Qamro Bi (1) A.I.R. 1951 Hyd. 117, it was held that the order of the Magistrate in granting maintenance to the wife alone beyond 3 months 10 days from the date of the filing of the counter by the husband is illegal and therefore, a reference to the High Court with a recommendation to quash the order of the Magistrate to that extent was made. Hence, this criminal revision case which first came up before our learned brother, Punnayya, J. before whom two conflicting decisions have been cited. In Imam Saheb vs. Hajju Bee (2) 1970(1) An.W.R.I38, Mohammed Mlrza, J. referred to three different modes of talak viz., (1) Talak Ashan, (2) Talak Hasan and (3) Talak-ul-biddat and held as follows: