GAFUR SAHA Vs. SABATUN BIBI

JUDGEMENT

(1.) In this revision under Section 115 of the Civil Procedure Code, 1908 (for short 'the Code') the petitioner -husband has assailed the order of the learned Subordinate Judge, Balasore granting interim maintenance at the rate of Rs. 500/ - per month to the opposite party -wife.

(2.) ADMITTEDLY , the opposite party Sabatun Bibi (hereinafter referred to as 'the wife') and the petitioner Gafur Saha (hereinafter referred to as 'the husband') are Muslims, being of Hanafi School of Sunni sect. The wife, as plaintiff, instituted a suit for maintenance in the Court of the Subordinate Judge, Balasore claiming maintenance at the rate of Rs. 500/ - per month from the husband together with a petition under Section 18 -A of the Court Fees Act praying for exemption from payment of Court fees. Before the suit was admitted, the wife filed a petition in Misc. Case No. 77 of 1990 claiming interim maintenance of Rs. 500/ - per month from the husband alleging that the latter while living with another lady was not maintaining her and her three minor children born through him, despite being possessed of sufficient means. The husband filed a counter alleging that on 1 -8 -1990 he had divorced the wife as per their personal law in his Mirzapur residence by giving 'Talaq' in presence of two gentlemen and although he offered Rs. 500/ - towards mahr and Rs. 1,000/ - towards maintenance for three months, the wife refused to accept the same. It was also pleaded that in view of the Personal Law of the Muslims, the petition for interim maintenance was misconceived.

(3.) THIS revision first came up for hearing before a Single Judge of this Court on 14.4.1992. When relying on the decision reported in 1968(11) OLR 163 : (Sk. Mohiuddin v. Nasima Bibi), it was contended on behalf of the husband that he having declared in his counter to the petition for interim maintenance that he had already divorce his wife, such declaration was sufficient to constitute divorce. Since the said decision was clearly in support of the contention and as the learned Single Judge did not agree with the view expressed therein holding the same as offencing public policy and having far reaching consequence over a community in India, he has referred the matter for reconsideration by a larger Bench and this is how the matter has come before this Bench.