JAMALUDDIN Vs. MST. LALLI

JUDGEMENT

(1.) A short but interesting question of law has arisen in this petition under Sec. 482 Cr. PC filed by Shri Jamaluddin. The controversy raised in the case has assumed a great importance in view of passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act).

(2.) The facts of the case in narrow compass are that the petitioner Jamaluddin was married to Mst. Lalli, non-petitioner and both are governed by Mahomedan Law. Smt. Lalli submitted an application on July 18, 1985 under Sec. 125 Cr. PC, against the petitioner for grant of maintenance allowance to herself and her two children. Out of two children, one is daughter aged 12 years and another is son aged 10 years. According to Mst. Lalli, the parties were married 20 years back and the afore-mentioned two children were born during the lawful wedlock between the parties. The attitude of the petitioner Jamaluddin was cruel towards her and she was turned out of their matrimonial home. Smt. Lalli thereafter, was maintaining herself and her children by borrowing and she had no means of livelihood. She also went to her in-laws house on July 5, 1985, in the village of petitioner Jamaluddin and to the Panchas for granting her maintenance but the husband declined to give any maintenance. It was further alleged that Jamaluddin had also married another girl, who was the daughter of Dina Teli. The income of Jamaluddin was nearly Rs. 2,000.00 p.m.

(3.) Jamaluddin contested the above application and submitted that he had no source of income. He was dependent on his own parents. It was also alleged that Smt. Lalli was a woman of dis-repute and she had given birth to an illegitimate son and was leading her life by in-famous means. Jamaluddin though admitted that he had married with another woman but submitted that she had already died. The learned Munsif and Judicial Magistrate, Sawaimadhopur, by order dated Oct. 21, 1986, took the view that Smt. Lalli had already been divorced by Talaq by Jamaluddin and under the provisions of the Act of 1986 she herself was not entitled to any maintenance. The learned Magistrate did not find any force in the contention of Jamaluddin that the son born to Mst. Lalli was illegitimate and further held that under Sec. 112 of the Evidence Act, there would be a presumption of legitimacy of child who was born during continuance of lawful wedlock. Jamaluddin would have to produce evidence in order to rebut the above presumption. Learned Magistrate also held that Mst. Lalli had shown the income of Jamaluddin as Rs. 2,000.00 p.m. while Jamaluddin has taken the plea that he has no income, but this matter could only be decided after the evidence is led by the parties. The learned Magistrate, in these circumstances, thought it fit to award Rs. 200.00 p.m. i.e. Rs. 100.00 p.m. to each child for their maintenance till the final disposal of the petition filed under Sec. 125 Cr. PC. The above maintenance has been granted from April 1, 1986.