DILSHADA MASOOD Vs. GH MUSTAFFA

JUDGEMENT

(1.) This Criminal Reference has been made by the learned Sessions Judge Srinagar under Section 438 Criminal Procedure Code for quashing the order of the learned First Additional Munsiff Judicial Magistrate, 1st Class Srinagar, dated 31st March 1979 holding the divorce between the parties as valid under Shia Law.

(2.) This reference was pending disposal before the learned single Judge and his Lordship has referred it to the larger bench for an authoritative pronouncement on the following questions. i. Whether under Shia law it was necessary for a valid divorce that the same should be in Arabic? ii. If it is necessary that it would be pronounced in presence of Imam and two 'Aadil' witnesses" and iii. What was the meaning of 'Aadil' in Shia Law : The facts giving rise to this reference are briefly stated as under :- Dilshada Masood petitioner therein was married to respondent Ghulam Mustaffa. She was allegedly deserted by her husband. She filed an application under Section 488 of the Criminal Procedure Code before the learned Judicial Magistrate for getting maintenance allowance from him. After a thorough enquiry the learned Magistrate ordered the respondent husband to pay monthly allowance of Rs. 50/- to her. A revision came to be filed against the said order before the learned Sessions Judge at the behest of the respondent which, was dismissed. When the maintenance order came in for execution the respondent husband raised a plea that he has divorced the petitioner on 31st December, 1975 and therefore was not bound to pay the maintenance allowance to her. This plea did not find favour with the learned Magistrate who rejected his application. A revision came to be filed before the learned Chief Judicial Magistrate against the said order. The Chief Judicial Magistrate made a reference to the High Court for setting aside the said order of the Magistrate. The High Court while disposing of the said reference ordered that the respondent shall pay the arrears of maintenance as claimed by the petitioner till the date of the alleged divorce. As regards the remaining arrears of maintenance it however directed the trial court to record a finding about the validity or otherwise of the alleged divorce and then pass orders accordingly. The learned Magistrate, therefore, recorded some evidence as led by the respondent. Thereafter he returned a finding that the divorce was valid under Shia law and therefore the petitioner was not entitled to any maintenance from the date of the said divorce. The said order was challenged by the petitioner in a Revision before the learned Sessions Judge, Srinagar, who has made this reference for setting aside the same.

(3.) We have heard the learned counsel for the parties and have examined the entire record. It may be stated at the very outset that the questions formulated by the learned single Judge all relate to jurisprudential interpretation under Shia Law and therefore we had to consult some of the important text books of that law particularly ' TAHRIR-UL-WAILAS, 'SHRAH LUMA' and 'TAUZIHUL-MASAIL'. Not only that, one of us (Rizvi, J.) even consulted some eminent jurisprudents having good knowledge of Shia Law.