KHAZI AHMED MOHIUDDIN Vs. WAHEEDA BI

JUDGEMENT

(1.) This is a reference under section 438, Criminal Procedure Code by the District and Sessions Judge, Adilabad to revise the order of the Munsif-Magistrate Bhainsa in M.C. 36 of 1966 passed on an application under section 488, Criminal Procedure Code claiming maintenance. The petition was filed by Waheeda Bi (hereinafter referred to as the petitioner), against her husband Khazi Ahmed Mohiuddin (hereinafter referred to as the respondent) alleging that she was the legally wedded wife of the respondent and through him had three sons and one daughter, that the respondent has been habitually illtreating her for the past ten years and had driven her out of the house and she was being maintained by her brother, that when the elders intervened, the respondent gave one of his lands at Naigoan for the purpose of her maintenance, that during the last Ugadi the respondent did not permit her lessee to cultivate and began cultivating the lands himself and was refusing to give anything towards her maintenance also, that he has considerable lands in several villages fetching an income of Rs. 4,000 a year, besides his income of Rs. 500 as a Khazi and a pension of Rs. 22 per month as retired teacher that therefore she is entitled to a maintenance of Rs. 200 per month. Tne respondent in his counter while admitting that the petitioner was his legally wedded wife, alleged that he had divorced her 25 years back due to her indecent moral character, that he was not liable to maintain her and denied the rest of the allegations regarding cruelty, etc.

(2.) The petitioner had examined four witnesses on her behalf. The respondent examined only himself as R. W. 1 on his behalf. While giving evidence, the respondent contended that he had already divorced his wife 25 years ago by pronouncing 'Talaq' in the presence of a number of people named by him including the uncle of the petitioner and had also given a document to that effect that he had published it in the newspaper ' Siasat' of 22nd May, 1966, Exhibit P-2, on a petition filed by his son. He further stated : "Even now I am again divorcing the petitioner, ' Talaq ' Talaq, Talaq ." The Magistrate found on the evidence adduced that the earlier divorce had not been proved, that it has been established that the respondent had neglected to maintain his wife, that however as he has pronounced divorce in Court on 3rd October, 1966, the divorce can take effect only from that date and the petitioner will be entitled to maintenance from the date of petition, 13th July, 1966 upto that date and for further period of four months and ten days being the period of Iddat and fixed the maintenance payable at Rs. 50 per month. Being aggrieved by this order, the Respondent went up in revision before the Sessions Judge, Adilabad and on examining the record, the Sessions Judge found that the divorce had taken effect from the time the counter was filed by the respondent in Court, i.e., on 19th August, 1966, that the petitioner was therefore entitled to maintenance from that date and not from the date of the petition and for a period of 3 months, thereafter and not for four months and ten days as ordered by the Magistrate and in that view referred this case with his recommendation for altering the period for which the maintenance is payable. The question to be considered is for what period maintenance becomes payable in the circumstances of this case and whether the period for which the maintenance has to be ordered should include the period of Iddat ?

(3.) There can be no doubt that maintenance will be payable until the date of divorce. The question to be considered is what is the date of divorce in this case ? According to the respondent, he had divorced the petitioner 25 years back in the presence of a number of persons and that there is a document also executed then, that he had subsequently to advertise this fact also in ' Saisat' when his son initiated some proceedings. But under Mohammedan Law, divorce does not take effect until the Talaq pronounced is communicated to his wife. In Wahad Baksh Seikh v. Hadisa Bibi, A I.R. 1960 Cal. 303, it was pointed out that where the existence of talaq comes to knowledge of the applicant wife during the proceedings under section 488, Criminal Procedure Code started by her she is entitled to maintenance up to the date of her knowledge of the talaknama and though the talaknama takes effect from its date her right to maintenance up to the date of her knowledge of it is not affected. To the same effect is the Judgment in Abdul Khader v. Azeeza Bee, (1944)1 M.L.J. 17: A.I.R. 1944 Mad. 227. In this case the petitioner denied knowledge of any such talaq having been pronounced. It was pointed out that judicial opinion is consistent in holding that whether talaq was pronounced or not previously, the moment an assertion of divorce by talaq is made in Court, the divorce (talaq) takes effect from that date. In , relying on the earlier rulings in Mohammad Hussain v. Rasul Bi, 14 Decc.L.R. 37, and Abdul Azeez v. Kabira Bi, 32 Decc.L R. 192, it was held that when the Court should come to the conclusion that the divorce pleaded was not proved, such a statement in the written statement itself operates as an expression of divorce by the husband from that moment. In Chandbi v. Bandesha, A.I.R.1961 Bom. 121, also it was held that where on an application for maintenance under section 488, Criminal Procedure Code by a Mohammedan wife, the husband files a written statement to the effect that he had already divorced the wife about 30 years ago , that statement even if the fact of such divorce is not proved operates as a declaration of divorce as from the date of the written statement andthe wife is then entitled only to a maintenance for a period of Iddat. It is therefore clear that as far as the petitioner is concerned in this case, the divorce takes effect from the date of the filing of the counter of the respondent in which he had alleged that he had already divorced her.