MANZOOR AHMAD KHAN Vs. SAJA AND THREE

JUDGEMENT

(1.) This Criminal Reference arises out of proceedings under section 488 Cr. P. C. initiated by respondents before the learned Judicial Magistrate, Ist Class, Magam. On 9th June, 2001, respondent No.1, Mst. Saja, filed an application under section 488 Cr. P. C. before the learned Judicial Magistrate, seeking grant of maintenance allowance in her favour as being the legally wedded wife and three minor children, namely, respondents 2, 3 and 4, of petitioner, Manzoor Ahmad Khan, namely, the petitioner herein, on the ground of neglect and refusal to maintain. Upon notice, the petitioner herein, on 13th August, 2001, presented an application before the learned Magistrate. In that application, the petitioner stated that, on account of absence of his wife, mst. Saja, from his house, he was up-set and, therefore, made a "bona fide" offer to respondent No.1 to return to his society and live with him as his wife. In this behalf, he sought intervention of the learned Magistrate. Subsequently, on 23rd August, 2001, he filed his objections to the application for maintenance, wherein he stated that respondent No.1 had gone to her parental house with his permission for two weeks but did not return. He further stated therein that, till the filing of the application for maintenance, respondents 2 to 4 would occasionally come to his house and reside with him but, thereafter, respondent No.1 stopped them from coming to his home and even then he had been paying maintenance to them. The petitioner reiterated his offer made earlier in his application dated 13th August, 2001 and, in fact, in his objections the only prayer made was for a direction to respondent No.1 to resume conjugal relations with the petitioner. It may be relevant to mention here that Respondent No.1 filed her objections to the offer for restoration of conjugal relations made by the petitioner wherein she stated that, since the petitioner had contracted a second marriage, therefore, it was not possible for her to return to the society of the petitioner. That application was ultimately disposed of by the learned Magistrate by order dated 30.1.2002. It appears that on 13th February, 2002, the petitioner made an application before the learned Magistrate stating therein that respondent No.2, Arifa, (minor), was not his daughter but was adopted by Mst. Saja without his consent. Therefore, she was not entitled to any maintenance. Order dated 13th February, 2003 passed by the learned Magistrate, granting interim maintenance, shows that this objection was over-ruled by the learned Magistrate and the question of grant of interim maintenance was decided. In the main application, the parties led their respective oral evidence. In his statement recorded on 13th February, 2002, petitioner, inter alia, stated before the Court that he had divorced his wife, Mst. Saja. The learned Magistrate, vide order dated 28th December, 2002, recorded a finding that respondent No.2 herein, Arifa, had, in fact been adopted by both the petitioner as well as respondent No.1 and, therefore, she was entitled to maintenance. However, as regards respondent No.1, Mst. Saja, the learned Magistrate recorded that under Suni-law the divorce operates from the time it is pronounced whether or not the wife has the knowledge of the same. The learned Magistrate further recorded that the statement rendered by the petitioner on 13th February, 2002, wherein he stated that he had divorced his wife, Mst. Saja, was recorded by the court in presence of respondent No.1, Mst. Saja, therefore, she stood divorced and their marital relationship stood terminated from 13th February, 2002. The learned Magistrate, accordingly allowed the application in so far as it related to respondents 2 to 4 granting Rs.500/- each as maintenance in their favour. However, in regard to the respondent, Mst. Saja, the learned Magistrate directed the petitioner to pay monthly maintenance allowance of Rs.500/- to her from the date of application, i.e. 13th June, 2001(though the application is actually shown to have been presented before the court on 9th June, 2001) till the end of the period of Iddat which was determined by the learned Magistrate to be 23rd May, 2002. Aggrieved of the aforesaid order of the lea rned Magistrate, the petitioner filed a revision petition before the learned Sessions Judge, Budgam. During the course of arguments before the learned Sessions Judge, the learned counsel for the petitioner made a statement that he did not have any objection to the order of the learned Magistrate insofar as it related to respondents 3 and 4, but as regards respondent No. l and 2, i.e., the wife, Mst. Saja, and adopted daughter, Arifa, the submission made was that, since Mst. Saja was divorced, she was not entitled to any maintenance and similarly Arifa was not entitled to any maintenance as, according to him, she was adopted by Mst. Saja after dissolution of their marriage. The learned Sessions Judge in the Reference order, in relation to respondent No.2 has observed that, though she admittedly is not the natural child of the petitioner and respondent No.1 but because of the fact that she was adopted by them before the birth of respondents 3 and 4, when they had no child of their own, the said respondent is deemed to have been planted in the erstwhile family of the petitioner and respondent No.1 and enjoyed a status similar to that of respondents 2 and 4, therefore, she was entitled to maintenance, having severed her relations with a her natural family. As regards respondent No.1, the learned Sessions has observed that, being a divorcee, she was not entitled to maintenance and that, if she had any claim, she could take recourse to civil law only and not under Section 488 Cr. P. C. The learned Sessions Judge has, accordingly, made a Reference to this Court to the following effect: "[T]hat while maintaining the impugned order insofar as it relates to respondents 2, 3 and 4, it be over-set in relation to respondent No.1 with liberty to her to agitate the matter in appropriate civil forum" I have heard learned counsel for the parties and have carefully perused the record.

(2.) At the out-set it may be observed here that no exception can be taken to either the order of the learned Magistrate or the learned Sessions Judge insofar as respondents 2 to 4 are concerned. The liability of the petitioner to maintain them is absolute. The other part of the Reference made relates to a limited question, "whether a divorcee is entitled to maintenance during the period of Iddat?" However, I feel that there is much more than that involved in the matter. Since the matter as a whole is before this Court in its revisionary jurisdiction, it merits consideration on the basis of the facts brought on record before the learned Magistrate and the law settled by the Apex Court. Learned counsel for the respondents submitted that the petitioner during the course of his statement before the learned Magistrate stated that he had divorced respondent No.1 herein some time in the past. According to the learned counsel, the petitioner was required to prove this fact before the learned Magistrate by evidence, but he did not produce any evidence in this behalf, muchless a cogent one. Therefore, the statement of the petitioner by itself could not be taken as proof of the divorce, unless it was substantiated by evidence. The learned counsel argued that the learned Judicial Magistrate has committed an illegality in construing the statement of the petitioner before the court as a divorce pronounced on respondent No.1 in the court itself. He submitted that when a person claims to have pronounced talaq some time in the past, he is required to prove the factum of pronouncement of talaq, otherwise the statement has to be taken to be a handy device to wriggle out of the liability to provide maintenance to the wife. In this connection, the learned counsel has relied on the judgment of the Supreme Court in Shamim Ara v State of U. P. AIR 2002 SC 3551. Secondly, Mr. Qayoom argued that a divorcee is entitled to maintenance during the period of Iddat. In this behalf, he cited and relied upon Mst. Fazi v Ali Mohd Pandoo 1974(V) J&K LR 732. On the other hand, Mr. Dar, learned counsel for the petitioner submitted that under Hanfi Law when a person claims to have pronounced talaq on his wife, he is not required to prove the factum of talaq. It operates then and there.

(3.) Iddat is understood to be the term of probation incumbent upon a woman in consequence of the dissolution of marriage after carnal connection. It means the term by the completion of which a new marriage is rendered lawful. During this period a man is bound to provide maintenance to the divorcee. The point whether a divorcee is entitled to maintenance during the period of Iddat was considered by a Division Bench of this Court in Mst. Fazi v. Ali Mohd. Pandoo (supra) and the Division Bench held that if the Mohammedan Law confers a right of maintenance during the period of Iddat, then such a legal right can be enforced under Section 488 of the Code of Criminal Procedure during the period of Iddat. The relevant portion of the judgment may be quoted hereunder: "In these circumstances therefore the short question for determination is when the talaq becomes irrevocable on 29.9.1970, whether the wife Mst. Fazi was entitled to maintenance at least for the period of Iddat, i.e., between 29.9.1970 and 29.12.1970. On this point Mr. Shah who argued this case with persuasive and ingenuity has submitted that the award of maintenance during Iddat is only a personal right of a wife available to her under the Mohammedan Law, and she can get this right only in a civil court. For the purpose of Section 488 Criminal. Proceedure Code the wife Mst. Fazi after being divorced would not be a wife in the eye of law and, therefore, Section 488 would have no application. We are, however, unable to agree with this contention. Section 488 of the Code of Criminal Procedure is not subordinate to any personal law but a general law on the subject which has to be regulated by personal law and the circumstances. If the Mohammedan Law confers a right of maintenance during the period of Iddat, then such a legal right can be enforced under section 488 of the Code of Criminal Procedure during that period. Section 4(1)(d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 runs as under:- `(d) in questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, casts or any religious usage or institution, the rule of decision is and shall be - the Mohammedan Law in cases where the parties are Mohammedan' By force of Sri Pratap Jammu and Kashmir Laws Consolidation Act (1977) since the wife is entitled to maintenance during the period of Iddat after divorce has been made, the criminal court acting under section 488 of the Code of Cr. Pr. becomes empowered to grant this maintenance during this limited period." (underlining and emphasis supplied) In view of the settled position of law, the point is no more res integra. A Muslim divorcee is entitled to maintenance during the period of Iddat. As regards the statement made by the petitioner before the learned Magistrate that he had pronounced talaq some time in the past prior to the date of recording of the statement, I feel that this point is also covered by the judgment of the Apex Court in Shamim Ara v. State of U. P (supra). In that case the husband had taken a plea in the written statement of a divorce having been pronounced by him on a date some time in the past. Though the date of divorce was mentioned in the written-statement, the Apex Court was of the view that the pronouncement of talaq was required to be proved. The Supreme Court held as under: