AMAD GIRI Vs. MST BEGHA

JUDGEMENT

(1.) THIS is a reference made by the Additional Sessions Judge, Jammu, in the proceedings arising out of a revision petition filed by the applicant against an order of the Tehsildar Magistrate First Class, Kishtwar, by which the applicant has been ordered to pay Rs. 30/- per month as maintenance to the non-applicant Under Section 488, Cr. PC

(2.) WE have heard counsel for the parties. It appears that on 1st Maghar, 2009 Mst. Begha, non-applicant put in an application Under Section 488, Cr. PC against Amad Giri, the applicant, alleging that she was his wife and had borne him ten children and that she had been driven put of his home by the applicant, and praying that, as ho had refused to maintain her, she may be granted an allowance of Rs. 30/per month from him for her maintenance. In paragraph 5 of her petition, she admitted that she had heard that her husband had divorced her. She, however, added that even if she had been divorced by her husband she could claim maintenance from him, as she was in old age and could neither remarry nor earn her own living. The applicant in his objections stated that the proceedings Under Section 488, Cr. PC could not proceed as he had divorced his wife. In support of his objections, he produced in Court an unopened registered cover, Ex. D-2, on opening which a Talaknama, Ex. D-l, executed on 12th Katik 2009, written by petition writer, Kunj Lai, and attested by two witnesses, Ahmad Sheikh and Rasul Giri. was recovered. It appeared that this Talaknama which is written on a stamp paper had been sent by the applicant to the non-applicant under the registered cover, Ex, D-2, which bears an endorsement of the postman, Ram Saran and of Aziz Giri, who has been produced by the applicant as has witness, to the effect that Mst. Begha, non-applicant, had refused to take delivery of this communication addressed to her. The scribe of the document, Ex. D-l, Kaaj Lai and one of the attesting witnesses, Rasul Giri, were produced by the applicant before the Tehsildar Magistrate and they prove the contents of the Talaknama. Aziz Giri has stated that he was present in the house of the non-applicant when the postman brought the registered cover to her of which she refused to take delivery. From the facts stated above, it is obvious that Talaknama, Ex. D-l, was executed on 12th Katik 2009 and Mst. Begha, non-applicant, refused to take delivery of it on 19th Katik 2009 and that she had not only refused to take delivery of this document but that she had also heard that she had been divorced by her husband before 1st Maghar 2009 the date on which she presented her application Under Section 488, Cr. PC to the Tehsildar Magistrate. Despite these clear facts proved by Amad Giri, applicant, before the Tehsildar Magistrate and in spite of the fact that his counsel drew the attention of the Magistrate to the provisions of Mohammadan Law as contained in the text books by Mulla and Ameer Ali, the Tehsildar Magistrate after quoting, a large number of verses (AYATS) from the holy Quran and making references to certain Hadises (sayings of the prophet) and other books of theology came to the conclusion that this Talaknama was absolutely invalid and ineffectual and, therefore, the relationship of husband and wife continued to exist between the parties. In the alternative he found that even if the divorce be held to be valid, the applicant was bound to maintain the non-applicant as she was old and could neither remarry nor earn her living. He, therefore, granted her a monthly maintenance allowance of Rs. 30/- and made no order with regard to the maintenance for the minor children of the couple as this had not been claimed in the application filed by the non-applicant. The learned Additional Sessions Judge Jammu, after referring to certain paragraphs of Mulla's Mohammadan Law held that the divorce in this case was good in law and had become irrevocable. He has, therefore, recommended that the order of the Tehsildar Magistrate granting a maintenance of Rs. 30/- per month in favour of the non-applicant be vacated but relying on 'in re Shekhanmian Jehangirmian' AIR 1930 Bom 178 (A) he has arrived at the conclusion that the non-applicant was entitled to claim maintenance allowance of Rs. 70/-in all for the period of her that

(3.) BEFORE examining the question under reference on its merits, I feel no hesitation in recording my strong disapproval of the manner in which the Tehsildar Magistrate has written his judgment. However learned the Tehsildar Magistrate may be in theology, he should have known that he was acting as a Judicial Officer, and it was not for him as such Officer to give his own interpretations of the verses of the holy Quran. Times without number the highest Judicial Courts in India including the Privy Council have sounded a note of warning against entertaining new and novel interpretations of the texts of the Quran and Hadis by persons who are not recognized as competent to give such interpretations. So far as these are concerned, we have to rely on the interpretation of only such commentators of yore (Muffasirs and Muhaddises) whose authority is acknowledged throughout the Muslim world. Not only has the Magistrate given interpretations of the texts of the holy Quran and of Hadis which render nugatory the well-established rules of FIQA, as evolved by the Faqihs (Doctors of Muslim Law) and accepted by the Judicial Courts in India, but he has made disrespectful references to non-Muslim Judges who in the course of their duty have to interpret Mohammadan Law in conformity with the sources of that Law and also to some distinguished text book writers, such as the late Sir Dinshah Fardunji Mulla, whose erudition and lucidity in expression none can gainsay, and to the late Sir Syed Ameer All, a profound scholar and eminent Judge of the Calcutta High Court and later a member of His Majesty's Privy Council who has earned a unique place in the legal and Islamic world by his masterly treatises on Mohammadan Law and the Law of Evidence and by his meritorious services to the cause of Islam. The explanation that the Magistrate has submitted on the requisition of the Additional Sessions Judge is still worse and deserves the severest condemnation. In this explanation, he has made many undesirable references to the administration of Muslim Law by non-Muslim Judges and has cast reflection on non- Muslim Advocates and I do not think any useful purpose will be served by repeating any of these uncalled for references here.