Full Judgment
W.A. Shah, J.
1. This is a revision under Section 397 of the Code of Criminal Procedure ('Code' hereafter) by applicant/wife Farida Bano against the respondent/husband Kamruddin. It arises out of order dated 17.6.1999 passed by Additional Sessions Judge, Badwah in Criminal Revision No. 52 of 1999 whereby reversing the order of the Magistrate the learned Additional Sessions Judge held that in the circumstances of the case the applicant/wife was not entitled to maintain application under Section 125 of the Code against the respondent.
2. On 27.2.1997 the applicant filed an application under Section 125 of the Code in the Court of Judicial Magistrate, First Class, Badwah against the respondent. The respondent resisting the application in his written statement inter alia submitted that on 25.12.1996 in the presence of witnesses he had divorced the applicant Farida Bano and also sent its information to her by Regd. A.D. Post. The respondent thereafter on 5.4.1997 submitted an application under the provisions of Sections 4 and 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ('1986 Act' hereafter). By the said application it was asserted that in the face of the said Talaq wife's maintenance application under Section 125 of the Code was not maintainable. The wife indeed opposed that application by filing a written reply thereto and in the reply she submitted that till that point of time she had not been divorced by the husband Kamruddin. She also replied that it was a device by Kamruddin to save himself from the payment of maintenance allowance. The learned Magistrate after consideration of the application ordered that whether Kamruddin had divorced Farida Bano or not was a matter to be decided on evidence, therefore, the application, which was filed by Kamruddin, deserved dismissal. He ordered that the application of Farida Bano under Section 125 of the Code, therefore, could not be dismissed at that juncture. It was this order of the learned Magistrate which respondent Kamruddin could successfully challenge before the learned Revisional Court. The learned Revisional Court held that under the provisions of Article 310 of the Mohammedan Law a Muslim husband was entitled to divorce his wife either by oral pronouncement or by a written deed. He also held that the right of the husband to divorce his wife is absolute. He held that under the circumstances the marriage relied upon by the wife stood dissolved and the husband did not opt for the continuation of the proceedings under Section 125 of the Code under the provisions of Section 5 of the 1986 Act. Therefore, he ordered for the dismissal of the maintenance proceedings under Section 125 of the Code. The learned Revisional Court also relied upon Mohammed Shakir v. Shabirabi and Ors. III (1995) CCR 425 MP and Mohammd Umarkhan v. Gulshan Begam II (1991) DMC 15 : 1991 (2) M.P.W.N. Note 61.
3. It is discovered from the impugned order that the learned Revisional Court while passed the impugned order by that time IV (2002) CCR 105 (SC) : AIR 2002 SC 3551 Shamim Ara v. State of U.P. and Anr., which clinches the point at issue in the case had not been pronounced and was not before the Revisional Court. It is useful to quote from the authority as under:
(a) Muslim Law - 'Talaq' - Plea of previous divorce taken by husband in written statement in proceedings initiated by wife for maintenance - Cannot at all be treated as pronouncement of 'Talaq' by husband on wife on date of filing of written statement in Court followed by delivery of copy thereof to wife - Neither marriage between parties stands dissolved on date of filing of written statement - Nor does liability of husband to pay maintenance comes to an end on that day.
(b) Muslim Law - Talaq - Law as ordained by Holy Quaran is (i) that 'Talaq' must be for a reasonable cause: and (ii) that must be preceded by an attempt of reconciliation between her husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his - If their attempts fail, 'Talaq' may be effected.
4. As per the proncouncement of the Apex Court in Shamim Ara (supra) it is indeed a question of fact to be proved by evidence whether the Talaq asserted by the husband Kamruddin is a 'Talaq' within the meaning of Muslim Law liable to be acted upon. Unless and until necessary requirements are proved, the Talaq under reference may not be actionable. Accordingly the order passed by the learned Revisional Court is liable to be interfered with being not in line with the law laid down in Shamim Ara (supra). The impugned order is accordingly set aside. The case is remanded to the learned Magistrate for trial according to law. This revision is accordingly allowed.