SHADAB BANO Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 raising the contention that after solemnization of her marriage on 9th of December, 2007 with the opposite party no. 2 she came to be subjected to torture on demands of dowry in the sum of Rs. 10 lac and the money having not been paid she was taken to the house of her Rs. 10,000/- per month.

(2.) THE husband-opposite party no. 2 took the plea before the Magistrate of the petitioner being a talaqui wife, talaq having been pronounced on 29th of January, 2008 and communication was effected on the following day. Amounts on account of Iddat period and that on account of Meher have been remitted by money order on 6th of March, 2008. The Magistrate rejected the application for interim maintenance under Section 23 of the Act and against that order dated 3rd of October, 2008 the petitioner has come up with this application under Section 482 Cr. P. C. The ground of rejection of the prayer for interim maintenance under Section 23 of the Act as I find from the Magisterial order is that there has been a talaq in favour of the wife and the Protection of Women for Domestic Violence Act 2005 does not include within the ambit and scope a talaqui wife who cannot be said to have a relationship with the husband.

(3.) MR. Ashis Sanyal, learned Senior Counsel appearing on behalf of the petitioner has very seriously criticized this observation of the learned Magistrate submitting, that the learned Magistrate's order is confusing, contrary and inconsistent. Once the learned Magistrate observed that the opposite party no. 2 has divorced the petitioner and again he observes that the talaq is the subject matter of proof at the trial. No doubt, the order of the learned Magistrate is subject to criticism. I quote the relevant portion of the order as follows:-prescribed, but the words must be made in express terms and should not be ambiguous. Even it is not necessary to pronounce the term Talaq in presence of the wife or even addressed to her but talaq takes effect immediately after it is uttered, even before it is communicated to the wife. Applying the said principle in the instant case I am of the opinion that the talaq as made by the opposite party is a valid Talaq. I further find a Talaqnama in favour of the opposite party from which it can be prime facie construed that between the petitioner and the opposite party the talaq has been duly made. Now whether such talaq has been duly made as per the Muslim Law or not is a matter to be considered at the time of trial only, upon appreciation of proper evidence. I, therefore, hold that the petitioner has been divorced by the opposite party. " Mr. Sanyal has further argued that one Imam has given a certificate that talaq has been pronounced in presence of the witnesses under Muslim Personal Law, while another Imam has issued a certificate that no talaq can be said to have been validly pronounced. Argued it was that in the context of the certificates of the two Imams one in favour of the wife and other in favour of the husband it could not be understood how the learned Magistrate whose order is susceptible to two different interpretations can hold even conflictingly that the petitioner is not entitled to protection under the Act.