MST FAZI Vs. ALI MOHAMMAD PANDOO

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Srinagar, recommending modification in the order passed by the trial Magistrate (Second Addl : Munsiff Judicial Magistrate), dated 7-6-1973.

(2.) THE reference arises in the following circumstances: Mst. Fazi, the applicant before the trial court, filed an application under Section 488 of the Code of Criminal Procedure for award of maintenance to her and to her two children, begotten by her from her husband, Ali Mohammad, on the ground that her husband, Ali Mohammad, had refused to maintain her and the two children. The application was resisted by the husband Ali Mohammad who took a specific plea in his objections dated 12-2-71 that the applicant Mst. Fazi had been divorced irrevocably by him by virtue of a divorce deed dated 29-9-1970. It was further alleged that a registered notice of this divorce deed was given to Mst. Fazi but she refused to accept the notice. While the proceeding before the trial court was pending a compromise was arrived at between the parties on 15-11-71 by which the husband agreed to take back his wife Mst. Fazi provided she came to his home within ten days of the compromise deed and revoked his earlier divorce given by him to her. Unfortunately the compromise fell through and the question of maintenance was revived by Mst. Fazi. To this the husband filed another objection on 29-5-1972 reiterating that the divorce had become irrevocable and that Mst. Fazi ceased to be his wife and therefore was not entitled to any maintenance. I might mention here that the trial Magistrate had granted maintenance at the rate of Rs. 50/- per month to the two children of the applicant Mst. Fazi viz : Imtiyaz Bano and Sami Jan from the date of the application, and had rejected the prayer of the applicant Mst. Fazi for grant of maintenance on the ground that as the divorce had become irrevocable on 299-1970, she ceased to be the wife of Ali Mohammad and therefore, was not entitled to any maintenance. Against this order of the trial Magistrate, a revision was taken before the learned Sessions Judge, Srinagar, for making a reference to this Court for granting suitable maintenance to the wife Mst. Fazi because the divorce given by the husband had been revoked during the course of compromise between the parties. The learned Sessions Judge has recommended that the wife Mst. Fazi was undoubtedly entitled to maintenance during the period of Iddat, and therefore he has referred this case to us for modifying the order of the trial Magistrate. There is no dispute regarding the grant of maintenance allowance to the children of Mst. Fazi except with regard to the quantum allowed by the trial court.

(3.) MR. Zaffar Ahmad Shah appearing for the husband submitted two points before us. In the first place he argued that in view of the divorce deed dated 29-9-1970 which is a Talaq in writing and in which the husband has given Talaq irrevocably and has made his intention absolutely clear, the Talaq must be deemed to have taken effect on 29-9-1970 and in case of a written Talaq it is not necessary that it should be communicated to the wife. All that is necessary is that the Talaq Nama should be signed by two marginal witnesses, which has been done in this case. This view was accepted by the trial court but the learned Sessions Judge was of the view that in view of the compromise between the parties, Talaq Nama dated 29-9-1970 stood revoked and a fresh divorce would be deemed to have taken place with effect from 12-2-1971 i. e. the date when the assertion was made by the husband in the written statement. This proposition has been seriously criticised by the learned Counsel opposing the reference.