SK ALI IMAM Vs. HAFIZAN BIBI

JUDGEMENT

(1.) This reference has been made by the 2nd Additional Sessions Judge of Singbhum in Criminal Revision No. 75 of 19G8. Hafizan Bibi alias Hafizan Niss,a brought an action for maintenance against her husband Sk. Ali Iman before a Magistrate, The learned Magistrate, on examination of the evidence before him which was given by four witnesses on her behalf, allowed a sum of Hs. 90.00 as maintenance for the Iddat period of 89 days. Against that order, a revision was filed before the learned Sessions Judge and the learned 2nd Additional Sessions Judge has made this reference recommending that the order of the learned Magistrate be quashed, because it is against law.

(2.) Mr. Mojibul Haque. learned Counsel appearing in favour of the reference, has argued that under the Mohammadan law, a divorced wife is entitled to maintenance for the period of Iddat only, but if she is divorced before a petition is filed Under Section 488 of the Criminal P.C., the learned Magistrate has no jurisdiction to entertain the same. In the pre-sent case, the wife and her witnesses have all admitted that she was divorced by her husband in presence of two witnesses on 20-10. 1967 and she filed this petition before the learned Magistrate on 16-6-1968. So this factum of divorce was to her knowledge when she filed this petition. The very language of Section 488 of the Criminal P.C. shows that the petition is maintainable only when the relationship of husband and wife exists on the date of the petition. So when the divorce is effected, the wife ceases to be a legal wife and the husband ceases to be a legal husband. In the circumstances of the case, therefore, this reference has got to be accepted. There are a few decisions touching this point to which a reference may be made. In the case of Janni Bibi v. Mohd. Abdul Rahman A.I.R. 1455 Andhra 1. Which was decided by Subba Rao, C. J. (as he then was) it was held that the existence and continuation of conjugal relationship is the foundation of an order directing rajment of maintenance Under Section 4 '8. Divorce of the wife is certainly a change in the circumstances for she loses her status as a wife. Similarly, in the ease of Amad Giri v. Musstt. Begha A.I.R. 1955 J and K 1 a Division Bench of the High Court of Jammu and Kashmir observed that a valid divorce of the wife by the husband, where it ii sanctioned by personal law, puts an end to the marital relation and the status of husband and wife and no order for maintenance can be made subsequent to the date of such divorce. Hanafi school recognizes Talak-ul-bidat. In that case Talak-ul-bidat was pronounced on 12th Katik2009 and it was sent to the wife under a registered cover. It was, therefore, held that en the date when the wife put in her application under-S. 488 of the CODE OF CRIMINAL PROCEDURE, 1973, she was no longer the wife of the husband and she was not competent to file the application Under Section 438 demanding maintenance from a person who was no longer her husband. In similar circumstances, in the case of Arrekkal Abdu-rahiman Musaliyar v. Neliyaparambath Ayissu it was observed thati where the Muhammadan husband has divorced his wife and the wife knew about it before the date on which she applies for maintenance, the application is incompetent. She may be en. titled to claim maintenance for the period of Iddat in a civil Court, but she is not entitled to invoke.the provisions of Section 488. I am in respectful agreement with these views and I accordingly hold that the order of the learned Magistrate on this point should be quashed and the reference as made to this Court be accepted.

(3.) This reference is. therefore, accepted and the order of the learned Magistrate granting maintenance to the tune of Rs. 90.00 is set aside.