2007 ALL MR (Cri) 971
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

J.H. BHATIA, J.

Sabira Begum W/O. Kazi Mumtaz Vs. Kazi Mumtaz Mohiuddin S/O. Kazi Ghous Mohiuddin & Ors.

Criminal Revision Application No.161 of 1994

13th September, 2006

Petitioner Counsel: Ms. V. B. KHODSE, S.S. CHOUDHARI
Respondent Counsel: Shri. N. H. BORADE

Criminal P.C. (1973), S.125 - Muslim Women (Protection of Rights on Divorce) Act (1986), S.3 - Maintenance - Muslim Woman claiming maintenance against her husband under S.125 of Criminal P.C. - Plea of divorce raised by Respondent husband - Divorce not proved by husband - Hence, petitioner wife cannot be treated as divorced woman - She continues to be wife of Respondent husband and therefore would be entitled to get maintenance U/s.125 of Criminal P.C..

In the present case, the Respondent husband had not pronounced the divorce or Talaq either in presence of his wife or in presence of any witnesses. Talaqnama was not prepared in presence of any witness. He only prepared one document of Talaq and claims to have sent to his wife by post but it could not be served on her as the address was not proper and she was not living at that address. Thereafter, he did not make any attempt to communicate to her that he had given divorce to her. As such there was no communication of divorce. For the first time, he took plea of the divorce only in his application for cancellation of the maintenance order. Taking into consideration there facts and the legal position, it is clear that the learned Additional Sessions Judge committed error in holding that Respondent No.1 husband had given divorce to the petitioner wife by sending a notice dated 17-2-1988. As divorce is not proved, the petitioner cannot be treated as divorced woman. She continue to be wife and therefore, she would be entitled to get maintenance U/s.125 Cr.P.C. 2003 ALL MR (Cri) 344 (S.C.) and 1988 Mh.L.J. 781 - Ref. to. [Para 6]

Cases Cited:
Mahaboobkhan Faizullakhan Vs. Parveenbanu, 1988 Mh.L.J. 781 [Para 5]
Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan, 2002(3) ALL MR 265 (F.B.)=2002(3) Mh.L.J. 602 [Para 6]
Shamim Ara Vs. State of U.P., 2003 ALL MR (Cri) 344 (S.C.) [Para 6]


JUDGMENT

JUDGMENT :- Heard.

2. The applicant and respondent No.1 were married long back. Respondent No.2 to 6 are their children. When this Revision Application was filed, the petitioner and respondent No.1 were 65 and 68 years old respectively. The applicant and her 5 children i.e. respondents Nos.2 to 6 had filed Cri. Misc. Application No.15/1982 for maintenance and maintenance was actually granted to them by Magistrate. The matter was taken upto High Court and the High Court had modified the order passed by the Magistrate and directed the Respondent No.1 to pay maintenance at the rate of Rs.100/- to the present petitioner and at the rate of Rs.50/- p.m. for each of the respondents Nos.2 to 6 who were then minor children. The Respondent No.1 filed Misc. Application No.33/1989 for cancellation of maintenance order on the ground that on 17-12-1988 by giving a notice by Registered Post A. D. he had given divorce to his wife and therefore, she was no more entitled to get maintenance U/s.125 Cr.P.C., in view of the provisions of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for the sake of brevity Muslim Women Act). He also contended that all the five children had attained majority and therefore, he was no more liable to pay maintenance to them. After hearing the parties the learned 2nd J.M.F.C., Parbhani came to the conclusion that respondents Nos.2 and 3 had attained the majority and therefore, the respondent No.1 was no more liable to provide maintenance to them. He found that remaining three children were still minor and were entitled to get maintenance. The learned J.M.F.C. rejected the plea of Respondent No.1 that he had given divorce to the petitioner - wife on 17-12-1988. Accordingly, the application was allowed only to the extent of respondents Nos.2 and 3, who had attained majority and remaining part of the application came to be rejected.

3. The Respondent No.1 preferred Criminal Revision Application No.40/1992, before the Sessions Court. After hearing the parties, the learned Additional Sessions Judge maintained the order passed by J.M.F.C. to the extent of the children. However, he came to the conclusion that the husband had proved that he had given divorce by issuing notice dated 17-2-1988 and therefore, she was not entitled to get maintenance U/s.125 Cr.P.C. with effect from 17-2-1988, in view of the provisions of Muslim Women Act. Accordingly, Revision Application was partly allowed to the extent of maintenance granted to the wife. Therefore, the wife has preferred the present Revision Application challenging the order passed by 2nd Additional Sessions Judge, Parbhani.

4. The only point before this Court for consideration is whether the Respondent No.1 has proved that he had given divorce or Talaq to the petitioner. In para 14 of the judgment, the learned J.M.F.C. noted that the husband had contended that he had given Talaq to his wife on 17-2-1988 and had broken the bond of marriage. He had admitted in his evidence that he had given Talaq to his wife in presence of nobody. According to him he prepared a Talaqnama and forwarded the same to his wife by Registered Post A.D. The envelope containing the said Talaqnama was returned with the postman remark that the addressee had been to Parbhani and therefore, it could not be served on her. The learned Magistrate noted that the husband had made no efforts to communicate the divorce to his wife thereafter. He also noted that the address of the wife on the envelope and the acknowledgment slip appeared to the incorrect and ambiguous and as such he had not made any honest efforts to communicated the divorce to his wife.

5. The learned Additional Sessions Judge however, held that there was no necessity of any witness of Talaq nor it was necessary to communicate the same of the wife. According to him, written Talaq in customary form is sufficient without any communication to the wife. Having taken that view, the learned Additional Sessions Judge held that the husband has given divorce to the wife with effect from 17-8-1988 when Talaqnama was written and allegedly put in envelope for being sent to her by post. The learned Additional Sessions Judge relied upon Mahaboobkhan Faizullakhan Vs. Parveenbanu and another, 1988 Maharashtra Law Journal 781, in support of his view that after enactment of Muslim Women Act with effect from 19-5-1986, a divorced woman is not entitled to claim maintenance U/s.125, Cr.P.C. and the provisions of Section 125 or 127, Cr.P.C. stand repealed.

6. In Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and others, 2002(3) Maharashtra Law Journal 602 : [2002 ALL MR (Cri) 1230 (F.B.) : 2002(3) ALL MR 265 (F.B.)], Full Bench of this Court held that Talaq must be for reasonable cause and it should be preceded by attempts at reconciliation between husband and wife by the arbitrators, one from the wife's family and the other from the husband. If the attempts failed, Talaq may be effected. It was held that attempts at reconciliation by the two relations, one from each of the parties is an essential condition precedent to Talaq. It was also held that mere statement made in writing before the Court in any form or in oral deposition regarding Talaq having been pronounced some times in the past is not sufficient to hold that the husband had divorced his wife. In Shamim Ara Vs. State of U.P. and another, 2003 ALL MR (Cri) 344 (S.C.), the Supreme Court also held that Talaq must be for reasonable cause and that it must be preceded by attempts of reconciliation between the husband and wife by two arbitrators. Their Lordships also held that plea taken in written statement and its communication to wife by delivering a copy of written statement cannot by itself be treated as effecting Talaq. It will be also applicable when the husband in his application for cancellation of maintenance order taken such plea. Merely taking of plea of divorce is not sufficient. The fact of divorce has to be proved by leading cogent evidence as per law. In the present case no such evidence was placed before the Court by the Respondent No.1. (sic) fact of divorce to his wife. From the evidence it is clear that he had not pronounced the divorce or Talaq either in presence of his wife or in presence of any witnesses. Talaqnama was not prepared in presence of any witness. He only prepared one document of Talaq and claims to have sent to him wife by post but it could not be served on her as the address was not proper and she was not living at that address. Thereafter, he did not make any attempt to communicate to her that he had given divorce to her. As such there was no communication of divorce. For the first time, he took plea of the divorce only in his application for cancellation of the maintenance order. Taking into consideration these facts and the legal position stated above, it is clear that the learned Additional Sessions Judge committed error in holding that Respondent No.1 husband had given divorce to the petitioner wife by sending a notice dated 17-2-1988. As divorce is not proved, the petitioner cannot be treated as divorced woman. She continue to be wife and therefore, she would be entitled to get maintenance U/s.125, Cr.P.C.

7. For the aforesaid reasons, the Revision Application is allowed. The impugned order passed by the 2nd Additional Sessions Judge, Parbhani is hereby set aside.

Revision allowed.