Khannubi W/O Salim Rayaliwale vs Salim S/O Rannu Rayaliwale
2003 Latest Caselaw 173 Bom

JUDGMENT

S.T. Kharche, J.

1. Heard Shri Tathod, learned Counsel for the applicant. None appears for the respondent though served.

2. The order dated 7-8-1998 passed by the Additional Sessions Judge, Washim and order dated 15-12-1997 passed by the Judicial Magistrate, First Class by which both the Courts had allowed the application filed by the respondent husband under Section 127 of Code of Criminal Procedure cancelling maintenance granted to the applicant wife at the rate of rupees two hundred per month are under challenge in this application.

3. The brief facts are as under:

The marriage of applicant wife was solemnised with the respondent husband in the year 1985 and soon after the marriage, she went to cohabit with him. She was being ill-treated since beginning. It is contended that on several times, she was mercilessly beaten by the respondent husband and his relatives against which she did not raise any voice due to helplessness. Out of wedlook, she gave birth to a male child, but she was being ill-treated at the hands of her husband and relatives even after birth of the child and she was unable to maintain herself and her husband having sufficient means refused and neglected to maintain her and consequently, she had filed Miscellaneous Application No. 18/1993 for granting maintenance under Section 125 of Code of Criminal Procedure.

4. This maintenance application came to be allowed by the learned Judicial Magistrate, First Class, who directed the husband to pay maintenance at the rate of rupees two hundred per month to the wife and rupees one hundred per month to the minor son. Thereafter respondent husband is said to have given divorce to his wife on 3-11-1993 and thereafter husband had filed application under Section 127 of Code of Criminal Procedure for cancellation of maintenance, which came to be allowed by the learned Judicial Magistrate, First Class on 15-12-1997 and it was held that the wife is not entitled to claim maintenance under Section 125(3) of the Code as she is divorcee. Being aggrieved by the said order, the wife had preferred a revision before the learned Sessions Judge, but the said revision came to be partly allowed with the direction that so far as claim of the applicant wife for maintenance under Section 125 of Code of Criminal Procedure is concerned, it has been nullified by the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 except for Iddat Period, i.e. three months from the date of divorce.

5. Shri Tathod, learned Counsel for the applicant wife, contended that both the courts below have committed an error in cancelling the order of maintenance under Section 127 of Code of Criminal Procedure. He contended that there was no valid divorce given by the respondent nor there was any evidence on record to hold that marriage between parties has been dissolved and, therefore, findings recorded by the learned Magistrate are perverse, illegal and contrary to the provisions of Mohammedan law. He contended that by pronouncing the divorce in the absence of the wife and that too, without any reason would not be a valid divorce and the husband cannot simply repudiate the marriage tie at his will and the Muslim law mandates pre-divorce reconciliation between the parties. In support of these submissions, he relied on the decision of the Full Bench of this Court in Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan and Ors., 2002 (3) Mh.LJ.(F.B.) 602.

6. Shri Tathod further contended that observations of the learned Additional Sessions Judge that in view of provisions laid down in the Muslim Women (Protection of Rights on Divorce) Act, 1986, right to claim maintenance under Section 125 of Code of Criminal Procedure stands obliterated and the only remedy available with her is to move the Court under Muslim Women (Protection of Rights on Divorce) Act cannot be sustained as there was no valid divorce given by the husband. He contended that applicant wife is perfectly entitled to claim maintenance under Section 125 of Code of Criminal Procedure because the said application has been filed by her though after commencement of Muslim Women (Protection of Rights on Divorce) Act, but before the alleged divorce.

7. I have carefully considered the contentions canvassed by the learned Counsel for the applicant wife and I am of the considered view that the orders passed by both the Courts below cancelling maintenance under Section 127 of Code of Criminal Procedure are unsustainable in law. The husband, is said to have given divorce and this fact is alleged to have been proved through his evidence. He had stated that he had given divorce to his wife before three years and nine months at Karanja. He pronounced the divorce in presence of Ibrahim Rannu Rayaliwale and Salim Tukdu Rajewale. Talaqnama was prepared in writing and the said witnesses had signed it and the respondent also put his thumb impression and thereafter this talaq was communicated to the wife under certificate of posting. In the cross-examination of the husband, it was brought on record that he belongs to Gawali Caste and in that caste, generally meeting is called by both the parties and question of giving talaq is decided. Admittedly such meeting was not held. The husband further stated in the cross-examination that it was not necessary to hold such meeting for pronouncement of divorce. The panch witness Ibrahim was also examined in order to corroborate the testimony of the husband.

8. Having regard to the evidence brought on record, it is not possible to accept that there was a valid divorce between the parties on 9-11-1993. In Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan and Ors., 2002(3) Mh.LJ. (F.B.) 602. Full Bench of Bombay High Court considered the question as to whether a muslim husband has a right to divorce his wife without reasons and at his mere whim and caprice and whether Muslim law mandates pre-divorce reconciliation between the parties. The Hon'ble Judges observed in para (22) that "a divorce" by the husband is talaq and it has its oral as well as written forms. The oral form of Talaq can be effected in three modes viz. Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure. Firstly, he has to make it known to his wife about any of these reasons and she must be given time to change her behaviour. If by his direct conversation/persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Two arbitrators, one from wife and one from the husband, are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and in spite of these efforts having been made if the discord still persists to an irreparable level there is no alternative but to separate and it is at this stage that the husband has the right to give Talaq to his wife. The stage of conciliation with the intervention of the arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form. It will be seen that in all disputes between the husband and the wife the judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconciliate the parties to each other failing which divorce is to be effected. Therefore, though it is the husband, who pronounces the divorce, he is as much bound by the decision of the judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two judges and their decision is binding. Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wife's family and the other from the husband's. If the attempts failed, Talaq must be effected. In other words, an attempt at reconciliation by two relations, one each of the parties, is an essential condition precedent to Talaq.

9. It would clearly reveal that a Muslim husband cannot repudiate the marriage at his whims and caprice. There must be a good reason and case has to be made out for giving divorce. Even parties are supposed to endeavour for reconciliation before exercising right by the husband to give talaq to his wife. In the present case, admittedly there was no good reason and even bona fides of the husband are doubtful. It is not disputed that application under Section 125 of Code of Criminal Procedure was filed on 21-10-1991, which came to be allowed on 15-6-1993 by the Magistrate granting maintenance at the rate of rupees two hundred per month to wife and rupees one hundred per month to the son. Then after lapse of about four months, the husband is said to have exercised his right to give talaq on 3-11-1993 and, therefore, there is a reason to draw presumption that this right must have been exercised by him without any reason, but only to evade payment of maintenance to the wife. Thus, considering the ratio laid down by the Full Bench of this Court, it is apparent in this case that it is not possible to sustain findings of both the Courts below that there was a valid divorce between the parties. Consequently, it is obvious that impugned orders passed by both the Courts below are erroneous and liable to be set aside. In that view of the matter, present criminal application is allowed and impugned orders are set aside and the application filed by the respondent husband for cancellation of maintenance under Section 127 of Code of Criminal Procedure is hereby dismissed. Rule is made absolute in the abovesaid terms.