B.N. Dash, J.
1. In this revision under Section 115 of the Civil Procedure Code, 1908 (for short 'the Code') the petitioner-husband has assailed the order of the learned Subordinate Judge, Balasore granting interim maintenance at the rate of Rs. 500/- per month to the opposite party-wife.
2. Admittedly, the opposite party Sabatun Bibi (hereinafter referred to as 'the wife') and the petitioner Gafur Saha (hereinafter referred to as 'the husband') are Muslims, being of Hanafi School of Sunni sect. The wife, as plaintiff, instituted a suit for maintenance in the Court of the Subordinate Judge, Balasore claiming maintenance at the rate of Rs. 500/- per month from the husband together with a petition under Section 18-A of the Court Fees Act praying for exemption from payment of Court fees. Before the suit was admitted, the wife filed a petition in Misc. Case No. 77 of 1990 claiming interim maintenance of Rs. 500/- per month from the husband alleging that the latter while living with another lady was not maintaining her and her three minor children born through him, despite being possessed of sufficient means. The husband filed a counter alleging that on 1-8-1990 he had divorced the wife as per their personal law in his Mirzapur residence by giving 'Talaq' in presence of two gentlemen and although he offered Rs. 500/- towards mahr and Rs. 1,000/- towards maintenance for three months, the wife refused to accept the same. It was also pleaded that in view of the Personal Law of the Muslims, the petition for interim maintenance was misconceived.
3. The learned Subordinate Judge came to held on the pleading of the parties that the fact of divorce-having not been established, it must be taken that there was subsistence of marriage between the two and that the wife could be given interim maintenance by the Court by exercising its inherent power under Section 151; of the Code. Having found as such, the learned Subordinate Judge directed the husband to pay Rs. 500/- per month to the wife from the date of filing of the application having further held that the husband having sufficient means was not maintaining her and her three minor children. Being aggrieved by such order, the husband has filed this revision.
4. This revision first came up for hearing before a Single Judge of this Court on 14.4.1992. When relying on the decision reported in 1968(11) OLR 163 : (Sk. Mohiuddin v. Nasima Bibi), it was contended on behalf of the husband that he having declared in his counter to the petition for interim maintenance that he had already divorce his wife, such declaration was sufficient to constitute divorce. Since the said decision was clearly in support of the contention and as the learned Single Judge did not agree with the view expressed therein holding the same as offencing public policy and having far reaching consequence over a community in India, he has referred the matter for reconsideration by a larger Bench and this is how the matter has come before this Bench.
5. Mrs. P. Mohanty, the learned Counsel for the husband contends that although the plea of divorce on 1.8.1990 has not been proved, the learned Subordinate Judge want wrong in his finding that there was subsistence of marriage. According to the learned Counsel, the divorce between the parties must be deemed to have taken place with effect from the date of filing of counter by the husband where he had specifically disclosed that he had divorced the wife on 1.8.1990. It Is also contended by her that since under the Personal Law of the Muslims, a husband is obliged to maintain his divorced wife only for the iddat period i.e. for three months, the order of interim maintenance cannot be sustained in law. Let us now examine the correctness of these contentions.
6. Coming to the first contention, it may be stated that there is no controversy at the bar that dissolution of marriage by divorce under the Mohammedan Law can be affected by 'Talaq' which means repudiation by the husband. But the questions arises whether a declaration made by a husband in the written statement or counter that he bad given 'Talaq' to his wife at an earlier date will constitute divorce and if so, from which date. Syed Ameer Ali in his Mohammedan Law Vol. II, 5th Edition at page 465 has written :--
'It is not necessary for the husband himself to pronounce the talaq in the presence of the wife, but it is necessary that it should come to her knowledge.'
Mulla in Principles of Mohammedan Law, 18th Edition at page 327 says as follows :--
'If a man says to his wife that she had been divorced yesterday or earlier, it leads to a divorce between them, even if there as no proof of a divorce on the previous day or earlier.'
7. From these text books, there can be no ambiguity that if a husband makes a declaration in his written statement of counter that he had divorced his wife on an earlier date, such declaration will constitute divorce between him and his wife atleast from the date of their filing, even if not from any earlier date.
8. In Asmat Ullah and Ors. v. Mt. Katun Unnisa ; AIR 1939 All. 592 a Division Bench of the Allahabad High Court following Raonaghten's Mohammedan Law, 1890 Edition, page 296 and referring to case 42 thereof and Sayed Ameer Ali's Mohammedan Law, 5th Edition, page 479 held :--
'........ If an acknowledgment of Talak is made by the husband the divorce will be held to take effect at least from the date upon which the acknowledgment is made.'
9. Similar view has also been taken by the Andhra Pradesh High Court in Mohammad Ali v. Fareedunnissa Begum : AIR 1970 A.P. 298. In Anamul Hague v. Bibi Jaimunissa : AIR 1967 Pat, 344. It has been held that the wife would be saddled with the knowledge of divorce on the date when the written statement was filed in Court. In Chandbi v. Badasha Mujawor : AIR 1961 Bom. 121, written statement was filed by the husband alleging divorce 30 years before. The plea was disbelieved but it was held that divorce was effective from the date the written statement was filed and the wife was entitled to maintenance for the period of iddat. In Wahab Ali v. Dasru Bi : AIR 1961 Hyd. 117, it was held that where the husband took a plea that he had already divorced his wife and the Courts case to the conclusion that the divorce pleaded was not proved, then such a statement in the written statement itself operated as an expression of divorce and operated from that moment.
10. While considering the aspect of divorce under the Mohammedan Law, one should not be influenced by his sense of justice of the principles relating to divorce applicable to Hindus or Christians. There can be any denial that a husband under the Mohammedan Law is in an advantageous position. It confers a special right on the husband and favours the husband more than the wife giving liberty to the husband not only to divorce the wife orally in the manner under the Mohammedan Law but also say, by issuing a notice or filing a written statement in defence to maintenance claim or a counter to an application for interim maintenance. On consideration of the aforesaid text books and the catena of decisions of various High Courts. We are of the view that a declaration same by a husband either in the written statement or in the counter that he had earlier divorced his wife will itself constitute a divorce and that the same will be effective atleast from the date the written statement or counter is filed in Court. In the case at hand, the husband having filed the counter to the application for interim maintenance on 17.8.1990 disclosing therein to have divorced the wife on 1.8.1990, it must be taken that the divorce between the two took place on 17.8.1990.
11. As for the second contention, reference may be made to Section 279 of the Mohammedan Law by Mulla (18th Edition) where it is stated, inter alia that after divorce the wife is entitled to maintenance during the period of Iddat. The word 'iddat' has been described in Section 257(2) to mean the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death, to remain in exclusion, and to sustain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if the woman is subject to menstruation, is three courses; if she is not so subject, it is three lunar months. If the woman is pregnant at the time, the period terminates upon delivery or after four months and ten days, whichever period is longer. All these clearly go to indicate that under the personal of the Muslims, a husband's liability to maintain his divorced wife is limited up to and for the period of iddat and it does not extend beyond such period. The learned Subordinate Judge relying on Section 3(1)(a) of the Muslim Woman's (Protection of Rights on Divorce) Act No. 25 of 1986 (for short 'the Act') has come to hold that the liability of the husband to maintain the wife extends beyond the iddat period. Section 3(1)(a) of the said Act may now be examined to find out the correctness of the finding of the learned Subordinate Judge which is extracted below :--
'Mahr or other properties of Muslim woman to be given to her at the time of divorce--(1) Notwithstanding anything contained in any law for the time being in force, a divorced woman shall be entitled to--
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
XX XX XX '
12. According to the learned Subordinate Judge, the above provision supersedes the personal law of the Muslims one since it is not states that the reasonable and fair provision of maintenance is to be made and paid to a divorced wife 'for' the period of iddat, the divorced wife is entitled to fair provision and maintenance even beyod the iddat period. There is no doubt that the above provision in the aforesaid Act supersedes the Personal Law of the Muslims but for the absence of the word 'for' in Section 3(1)(a), it cannot be said that a divorced wife is entitled to maintenance beyond the iddat period. All that the aforesaid provision says is that the former husband has to make fair provision and pay maintenance to divorced wife within the iddat period. This means that a time limit has been fixed for making fair provision and paying maintenance to the divorced wife. That being so, the finding of the learned Subordinate Judge that a divorced wife is entitled to fair provision and maintenance from her former husband also beyond the iddat period cannot be accepted, being contrary to law and we held that a divorced wife is entitled to fair provision and maintenance from her former husband only for the period of iddat.
13. In view of the above finding that the liability of the husband to make fair provision and to pay maintenance is for a limited time i.e. the period of iddat, the question arises whether the wife is entitled to interim maintenance. Since the disposal of the suit may take a longer time than the period of iddat, interim maintenance can be granted only for the iddat period, when the husband's liability for making a fair provision and paying maintenance is only for the iddat period. The view taken by us finds support from the decision of a Single Judge of this Court in Sayad Nawaj Alli alias Nati v. Rasida Begum : 71 (1991) CLT 257. Similar view has also been taken by the Andhra Pradesh High Court in the case of Mohammad Ali (supra) in which the decision of Abdul Shakoor v. Smt. Kulsum Bibi, 1962--1 Cr.L. J. 247 (All.) was cited with approval.
14. So, the learned Subordinate Judge committed an error of law in holding that the petitioner was liable to pay interim maintenance beyond the period of iddat. Question is whether any relief can be granted to the petitioner in the present proceeding for Section 115 of the Code to operate, the subordinate Court must have either exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested in it or must have acted in exercise of jurisdiction illegally or with material irregularity. The present is apparently not a case attracting the first two requirements. Let it be seen whether the third requirement is satisfied. There is no material irregularity in the exercise of jurisdiction. The word 'illegally' cannot be understood to mean any error of law, otherwise, every erroneous order would become revisable and the distinction between appeal and revision would cease to exist. This has been the view ever since the decision of the Privy Council in Amir Hassan Khan v. Sheobux Singh, (1885) 11 IA 237. The illegality must relate to the procedure accepted - while exercising the jurisdiction.
15. The aforesaid shows that this clause is attracted when, while passing an order, some procedural illegality or material irregularity is committed. This is not relatable to the merit of the order, and so, even if the order be illegal, this clause would not be attracted unless in the process of passing the order an illegality or material irregularity has been committed.
16. The above part, as per the proviso added to Section 115 by the Amendment Act of 1976, a High Court cannot interfere in revision unless the order has either finally disposed of the suit or other proceeding, or, if allowed to stand, would occasion in failure of justice or would cause irreparable injury to the party against whom it was made. The first condition is apparently not attracted as the present is an interim order. As to the second, we may say that it is not a case of irreparable injury, nor would it occasion in failure of justice inasmuch as the order granting interim maintenance of a small amount to a wife cannot be said to have occasioned any failure of justice. Indeed, if justice has to be considered, that lies with the wife rather than with the husband, the petitioner.
17. In view of the above, despite the illegality which has been committed by the Subordinate Judge in ordering for payment of maintenance, no case for interference by this Court is made out. The petition is, therefore, dismissed.
Mr. B.L. Hansaria, C.J.
I agree.