SATTAR SHEIKH Vs. FAZALU BIBI

JUDGEMENT

(1.) THIS petition is by the husband. The opposite party filed an application under Section 488 of the Code of Criminal Procedure On 22 -12 -69 claiming maintenance from the petitioner her husband at the rate of Rs. 80/ - per month, She stated that she lived in her husband's house for sometime, but was driven out by him after assaulting her mercilessly and that he is not maintaining her from that date though he has sufficient means.

(2.) THE husband filed show -cause on 20 -6 -1970 stating that he divorced the petitioner by executing a deed of Talak on the 5th of Jaistha 1376 B. S. and that she is not entitled to claim any maintenance from him The learned Magistrate by his order dated 13 -1 -1973 allowed the wife's petition directing payment of Rs. 50/ - per month as maintenance from the date of filing of her application i.e., 22 -12 -1969. He has rejected the plea of the husband that the petitioner was divorced by him. Against that order the husband moved the Sessions Judge in an application under Sections 435 and 438 of the Code. The learned Sessions Judge by his order dated 26 -6 -1973 has rejected that petition refusing to make a reference to this Court, The husband has moved this Court filing this application under Section 439 of the Code challenging the legality of the learned Magistrate's order.

(3.) MRS . Moitra, appearing for the petitioner, however, submits that the Talaknama having been executed in the absence of the wife, she is entitled to maintenance upto the period of her acquiring knowledge of the Talak by communication of that to her. The Talak pronounced in the absence of the wife takes effect for the purpose of her getting alimony from the date of communication of that to her. The Talak takes effect though not communicated to her; but for the purpose of dower and alimony it is necessary that the Talak should come to her knowledge or she is informed of it. In this case the Talak which the husband gave in the absence of the wife came to her knowledge when the husband filed his show -cause in court on 20 -6 -1970 and oh that date, it appears from the order -sheet the wife was present in court. The order of that date reads as follows: Both parties present. Seen the show -cause by O. P.