SHEIKH JALIL Vs. BIBI SARFUNNISSA

JUDGEMENT

(1.) This application in revision is directed against an order dated the 19th July, 1972 passed under Sec. 488 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) directing the petitioner to pay Rs. 60/ - per month as maintenance to the opposite party with effect from the date of the said order. It appears that the opposite party filed an application under Sec. 488 of the Code before the Subdivisional Magistrate, Motihari on the 28th August, 1970, claiming that she was married to the petitioner nearly 35 years ago and since then she has been living with him as his wife. It was further alleged that the petitioner having sufficient means, had neglected to maintain her and as such he should be directed to pay her a maintenance of Rs. 425/ - per month since the date of filing of the said application. The learned Subdivisional Magistrate issued show cause notice to the petitioner. In pursuance of the said notice the petitioner filed his show cause on the 7th November, 1970. In the said show cause it was alleged on behalf of the petitioner that the opposite party was not entitled for maintenance, because the petitioner had already divorced her. In paragraph 9 of the said show cause it was said that the petitioner tried his best to keep the opposite party at his place, but due to manoeuvring of the enemies of the petitioner, she refused to live with the petitioner and the petitioner had no alternative "but to divorce her and the petitioner divorced her on the 24th August, 1970 and since then he severed all connections with the petitioner and the relationship between husband and wife ceased to exist." During the course of the hearing of the said application, witnesses were examined on behalf of the opposite party as well as on behalf of the petitioner. The petitioner was examined as D. W. 5, who during the course of his evidence again asserted that he had divorced the opposite party who was once his wife. The learned Magistrate on consideration of the evidence on record, came to the conclusion that the petitioner, had failed to prove that he had divorced the opposite party on the 24th August, 1970, as asserted by him and on that finding he came to the conclusion that the opposite party continued to be the wife of the petitioner and as such entitled to the maintenance and, accordingly, he passed an order as already stated above, directing the petitioner to pay her maintenance of Rs. 60/ - per month since the date of the order.

(2.) The Learned Counsel appearing for the petitioner has submitted that the learned Magistrate should have held that even if it was not proved that the petitioner had divorced the opposite party on the 24th August, 1970, the learned Magistrate should have held that the opposite party will be deemed to have been divorced since the 7th November, 1970, the day the show cause was filed on behalf of the petitioner asserting that he had divorced the opposite party. Sec. 488 of the Code contemplates that the applicant for maintenance must be the wife of the person from whom the maintenance is claimed and she must continue as such to be entitled for such a maintenance. Accordingly, if it is held that the opposite party ceased to be wife of the petitioner on any date prior to the passing of the impugned order, then the learned Magistrate was not justified in directing the petitioner to pay the maintenance to the opposite party. As such the crucial question for decision in this case is as to whether the opposite party was the wife of the petitioner on the 19th July, 1972 when the impugned order was passed.

(3.) The parties in the case are governed by Mohammedan Law, and to find out whether there can be a divorce in the circumstances stated above, one has to look to the principles of the said Mohammedan Law.