Wajed Khan vs Mohasinabi And Anr.
2001 Latest Caselaw 250 Bom

JUDGMENT

R.K. Batta, J.

1. Heard learned Advocate for the applicant, learned Advocate for the respondent No. 1 and learned A.P.P. for respondent No. 2-State.

2. The proceedings under Section 125, Cr.P.C. had been initiated by respondent No. 1 for self and on behalf of her minor son on 7.2.1991. In these proceedings, the present applicant took the stand that he had divorced the respondent No. 1 by giving Talaqnama and as such in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called the said Act), the application for maintenance was not maintainable and as such he was not liable to pay maintenance. This objection was overruled by the Magistrate as he found that the Talaqnama was not valid since at the time of Talaq in question was given, the respondent was in menstruation. Even though the Magistrate held that the original applicant, namely the present respondent No. 1 had failed to prove ill treatment, yet the maintenance of Rs. 200/- was awarded in favour of the present respondent. Besides this, maintenance of Rs. 150/- was awarded in favour of the minor child of the respondent No. 1. This order was challenged in criminal revision by the present applicant before the Sessions Court. By judgment dated 4.2.1997, the learned Additional Sessions Judge held that the Talaqnama dated 17.7.1991 was invalid as a result of which the provisions of the said Act were not applicable and the present respondent was entitled for maintenance. The revision was accordingly rejected. The applicant has now come under Section 482, Cr.P.C. for quashing the judgments of two Courts below with reference to the maintenance awarded in favour of respondent No. 1. Learned Advocate for the applicant has submitted before me that the order of maintenance in favour of the minor child of respondent No. 1 is not challenged in this application.

3. The main ground of the challenge in this application is that the findings of the Courts below that the Talaqnama dated 17.7.1991 is invalid is perverse in the light of law on the subject and if the Talaqnama is held to be valid in the eyes of law then application under Section 125, Cr.P.C. cannot be entertained in view of the provisions of the said Act. Learned Advocate for the applicant has mainly relied upon Full Bench judgment of this Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and On., reported in II (2000) DMC 634=IV (2000) CCR 327 (FB). Besides this, learned Advocate for the applicant has also relied upon a Division Bench judgment of this Court in Saira Bano v. Mohd. Aslam Ghulam Mustafa Khan Sherwani and Anr., reported in 2000 (1) Civil L.J..642=I (2001) DMC 457 (DB), wherein it is held that the stand taken in written statement or in any application or in witness box that the husband has divorced his wife unless supported by evidence cannot be regarded as proof of divorce. On the question of granting of divorce in the state of Tuhr, reliance has been placed on judgment of learned Single Judge of this Court in Banu and Anr. v. Kutubuddin Sulemanji Vimanwala, reported in II (1995) DMC 390, wherein it is held that divorce by husband to his wife cannot be declared void on the ground that husband had not proved that wife was in her periods on date of Talaq particularly when wife is staying away from him. On the strength of above authorities, it is urged that since the applicant had validly pronounced talaq to his wife, namely respondent No. 1, the application for maintenance is not maintainable and the respondent No. 1 is not entitled to claim any maintenance under the provisions of Section 125, Cr.P.C. contained in Chapter IX of the Code of Criminal Procedure.

4. Learned Advocate for respondent No. 1 urged before me that the application in question, was filed on 7.2.1991 and the question of maintainability was raised in reply dated 5.3.1992. Learned Advocate for the respondent No. 1 stated that there are concurrent findings of Courts below and this Court should not be interfered under Section 482, Cr.P.C; Learned Advocate for the applicant placed reliance on Division Bench judgment of this Court in Saira Bano v. Mohd. Aslam Ghulam Mustafa Khan Sherwani and Anr. (supra), and judgment of Single Judge in Shaikh Mobin s/o Shaikh Chand v. State of Maharashtra and Anr., reported in 1996 (1) Mh. LJ 810, in support of his contention that mere pleading in the written statement does not prove the factum of divorce. He has also placed reliance on judgment of learned Single Judge in Shaikh Babbu s/o Sk. Khutbuddin v. Sayeda Masarat Begum w/o Shaikh Babbu and Anr., reported in 1999 (3) Mh. LJ 465, wherein it is held that the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 are available to divorced muslim woman for claiming maintenance from her former husband in addition to provisions of Chapter XI of the Criminal Procedure Code and they are not in exclusion of each other. This view of the learned Single Judge is no longer good law in view of the Full Bench judgment of this Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and Ors. (supra). Learned Advocate for the respondent No. 1 also pointed out that there are material contradictions between the statement of husband and Qazi who have been examined in the Court as to the nature of divorce and that the Courts below have rightly held that the talaqnama is invalid. As a result of which the provisions of Section 125 would govern the proceedings.

5. Learned A.P.P. for respondent No. 2 has argued before me that unless there is divorce, the provisions of the said Act did not come into play. He also placed reliance on the Full Bench judgment of this Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and Ors. (supra).

6. Application under Section 125, Cr.P.C. was filed by the respondent No. 1 on 7.2.1991. The reply was filed by the present applicant on 5.3.1992 in which the plea was taken that the present applicant had already divorced the respondent No. 1 by talaqnama dated 17.7.1991. Talaqnama was produced on record and the talaqnama was sent by Registered A.D. to respondent No. 1 who received the same on 24.7.1991 in respect of which acknowledgement receipt (Exhibit-25) was filed on record. The Muslim Law provides for various types of talaq, one of which is talak-ul-bidaat or talak-i-badai which consists of three pronouncements made during a single tuhr either in one sentence, e.g., "I divorce thee thrice", or in separate sentences, e.g., "I divorce thee, I divorce thee, I divorce thee". It also provides that a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage by stating, "I divorce thee irrevocably". The essential feature of a talak-ul-bidaat is its irrevocability and one of the tests of irrevocability in the repetition three times of the formula of divorce within one tuhr. According to the present applicant, the talaqnama is in the form of talak-ul-bidaat and it is given in the presence of witnesses which is the requirement in law. Even though the Qazi, who is examined, said that it is different type of talaq yet from the talaqnama dated 17.7.1991, it is crystal clear that talaq in question is talak-ul-bidaat. This talaqnama was duly intimated to the respondent No. 1 by Registered A.D. and acknowledgement (Exhibit-25) is on record showing that the same was received by the present respondent No. 1 on 24.7.1991. In this respect, the contention of respondent No. 1 is that when the talaq was given, she was in menstruation. In fact, the requirement of talaq is that it should be pronounced in the state of tuhr which means during the purity of wife or in other words when the wife is not in menstruation. In this respect, reliance has been placed by the learned Advocate for the applicant on the judgment of the Single Judge of this Court in Banu and Anr. v. Kutubuddin Sulemanji Vimanwala (supra), wherein it is held that the wife should be in the state of tuhr at the time of talaq and divorce by husband to his wife cannot be declared void on the ground that the husband has not proved that wife was in her periods on the date of talaq particularly when wife is staying away from him.

7. In the case under consideration, the present respondent No. 1 had stated in the application dated 7.2.1991 that she had been thrown out of the house about three years prior to the date of filing of the application though in the course of her deposition she tried to come out with a different version when she stated that since from two years ago she was living with her parents as the non-applicant expelled her from matrimonial house. Her deposition was recorded on 7.9.1993 and as per the said deposition, she was thrown out of the house somewhere in the year 1991. But, as I have already pointed out in the application filed on 7.2.1991, the respondent No. 1 on herself stated that she was thrown out of the house about three years prior to the date of filing of the application. In such state of affairs the burden shall be on the wife to prove that when the talaq was given she was not in the state of tuhr or that she was in the menstruation period. The respondent No. 1 has failed to discharge this burden on her as obviously the husband will not be able to know about her periods when the wife is staying far away from him for long. She admitted during her cross-examination that she could hot state the exact date of each and every date of about her monthly period. She also stated that she cannot recollect the exact date of her monthly period when she received the talaqnama from non-applicant. In these circumstances, it is to be held that the talaqnama dated 17.7.1991 is valid.

8. Once we come to the conclusion that talaqnama is valid, the divorced Muslim wife is not entitled to any maintenance under Section 125, Chapter IX, Criminal Procedure Code. The law is no longer res Integra on this issue and the Full Bench judgment of this Court in Karim AR Shaikh v. Shehnaz Karim Shaikh (supra), has categorically answered the reference by laying down that after the commencement of the said Act, Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of Criminal Procedure Code and it is only under Section 5 of the said Act that by agreement husband and divorced wife can approach Magistrate under Chapter IX, Cr.P.C. The entitle scheme of the said Act has been examined by the Full Bench for coming to the said conclusion. Therefore, from the date of talaq, the application for maintenance under Section 125, Cr.P.C. would not be maintainable. In the case under consideration, the application for maintenance was filed on 7.2.1991 and talaqnama was given on 17.7.1991 and till then the respondent No. 1 had not been divorced and as such her application which was filed on 7.2.1991 would be maintainable till the divorce was pronounced by talaqnama dated 17.7.1991. The Magistrate after having come to the conclusion in his judgment dated 5.4.1994 that in the circumstances, it is difficult to hold that non-applicant, namely the respondent No. 1 before had ill-treated the applicant. However, the Magistrate came to the conclusion that the respondent, namely the present applicant had refused and neglected to maintain the applicants. There findings on refusal and neglected to maintain have not been disturbed by the learned Additional Sessions Judge and these findings being of fact, cannot be interfered in an application under Section, 182, Cr.P.C. In view of the same, the respondent No. 2 would be, entitled to maintenance of Rs. 200/- per month till the date of talaqnama that is to say 17.7.1991 from the date of application, namely 7.2.1991.

9. In Kamalabai Khanderao Thete and Anr. v. Khanderao Murlidhar Thete, reported in 1990 Mh. LJ 108, it has been laid down by learned Single Judge of this Court that the normal rule is to grant maintenance from date of application and not from date of order and it is only when there are very exceptional circumstances for valid reasons it is open to a Magistrate to grant maintenance from subsequent date. These observations are part of para 10 which reads as under :

"This takes me to the other question whether the learned Magistrate was justified in not granting maintenance to the daughter from the date of the application. The learned Magistrate came to the conclusion that respondent No. 1 was not responsible for the delay in deciding the matter and that, therefore, by necessary implication, it means that he was not obliged to maintain her during the pendency of the application. The learned Magistrate forgot to take note of the fact that during this period when the proceeding was delayed respondent No. 1 did not pay anything to her. She was equally faultless, as she too was not responsible for the delay. The normal rule is to grant maintenance from the date of the application, and not from the date of the order. It is only when there are very exceptional circumstances, for valid reasons, it is open to a Magistrate to grant maintenance with effect from subsequent date."

10. In Kedari Shankarrao Shinde v. The State of Maharashtra and Anr., reported in 1992 (1) Mah. LR 359, a learned Single Judge of this Court has reiterated the position by stating that when a destitute wife comes to the Court and if it is held that she is entitled for separate maintenance, in normal circumstances, the order should be from the date of application, unless there are reasons for departing from this common practice. It is also pointed out that duration of the litigation is not within the powers of the litigant and, therefore, entitlement of the maintenance should not be left to the uncertain date of disposal of litigation.

11. In Nachhattar Singh v. Harjinder Kaur and Anr., reported in 1995 Cri. LJ 2726=II (1995) DMC 24, it has been observed, that the jurisdiction is vested in the Trial Court to award the maintenance from the date of the order or from the date of the application. It had to be exercised in a reasonable manner keeping in view the facts and circumstances of the case. It is further pointed out that the special reasons need not to be recorded but reason for arriving at the conclusion have to be given since the provision has been enacted to help the destitute wife or children so as to prevent vagrancy by compelling a person to support his wife and child by providing cheap and speedy remedy. I have absolutely no reason to take a different view of the matter and I record my respectful concurrence with the views of the learned Judges in the above rulings.

12. For the aforesaid reasons, the application is partly allowed. The grant of maintenance at the rate of Rs. 200/- per month from the date of application to the date of talaqnama, i.e. 17.7.1991 to the respondent No. 1 is upheld. The award of maintenance should normally be from the date of application unless there are circumstances to award maintenance from the date of order only. The grant of maintenance beyond the talaqnama dated 17.7.1991 in favour of respondent No. 1 is set aside. The applicant shall deposit the maintenance amount due under this order and also maintenance due in favour of the minor child which was awarded by the Trial Court and confirmed by the Revisional Court which was not subject-matter of challenge in this Court within a period of six weeks and report compliance to this Court. The same be deposited in the lower Court The matter be listed after six weeks on order board.

13. The application is allowed in aforesaid terms.