Judgment:
R.S. Chauhan, J.
1. The petitioner wife has challenged the order dated 22-1-2004, passed by the Family Court No. 1, Jaipur, whereby the learned Court has partly accepted the application filed by the petitioner under Section 125 Cr.P.C.
2. In a nutshell, the case of the petitioner is that on 31-10-1999, the petitioner married Mohd. Rafiq, the respondent No. 1, in accordance with Muslim rites and customs in Jaipur. During their wedlock a son, namely Sahil Khan, the respondent No. 2, was born. Sahil Khan is living with the petitioner. According to the petitioner, the respondent No. 1 and his family members started torturing her for dowry demands. Since, she comes from a poor family, her family could not fulfill the illegal demand of respondent No. 1 and his family members. Ultimately, on 10-10-2001, she was thrown out of her matrimonial home. Subsequently, on 28-2-2002, the petitioner lodged a FIR in Woman Police Station against the respondent No. 1 and his family members. However, since 10-10-2001, she has been residing with her parents, along with her child. Her father happens to be a rickshaw-puller, who has to support and feed eight other family members. Therefore, she is not in a position to maintain either herself or her child. Since without any justifiable reason, the respondent No. 1 has refused to maintain her and the child, therefore, she filed an application under Section 125 Cr.P.C. before the learned Court.
3. Before the learned Court, the respondent No. 1 accepted the fact of marriage, but denied the allegations with regard to cruelty committed by him and his family members. He further claimed that vide registered letter dated 19-11-2001, he had divorced the petitioner. Therefore, she was no longer his lawfully wedded wife. Thus, she could not claim maintenance under Section 125 Cr.P.C.
4. In rejoinder, the petitioner denied the statements made by respondent No. 1. In order to support her case, the petitioner examined herself and her father and exhibited seventeen documents. In support of his case, the respondent No. 1 examined himself. After going through the oral and documentary evidence, the learned Court concluded that the respondent No. 1 could not prove that he had divorced the petitioner through a registered letter dated 15-11-2001. However, the learned Court held that since the respondent No. 1 had stated in his testimony on 15-12-2003 that he has divorced the petitioner, therefore, the divorce would be taken to have occurred on 15-12-2003 itself. Thus, the respondent No. 1 was liable to pay the maintenance from the date of filing the application, i.e. 6-5-2002 till 15-12-2003. As well as to pay the maintenance during the period of 'Iddat' of three months thereafter. The learned Court further held that the respondent No. 1 is liable to pay maintenance Rs. 500/- per month to respondent No. 2 from 6-5-2002 till the respondent No. 2 reaches the age of maturity. Since, the petitioner is aggrieved by the said order, she has filed present petition before this Court.
5. Ms. Shalini Sheoran, the learned Counsel for the petitioner has contended that the learned trial court has erred in concluding that since in his testimony the respondent No. 1 has stated that he had divorced his wife-a testimony given on 15-12-2003-therefore, the divorce should be taken to have occurred on 15-12-2003 itself. According to the learned Counsel, it was for the respondent No. 1 to prove by cogent evidence that he had pronounced 'triple talaq', and had voluntarily divorced the petitioner under the Muslim law. This proof was, further, necessary because the learned trial court was of the opinion that the respondent No. 1 could not prove that he had communicated his intention to divorce the petitioner through registered letter dated 15-11-2001. According to the learned Counsel, even if the respondent No. 1 has stated in his written statement, that he had divorced the petitioner, the same is unacceptable as a proof of 'Talaq'. In order to buttress this contention she has relied on the case of Shamim Ara v. State of U.P. : [2002]SUPP3SCR19 and the case of Iqbal Bano v. State of U.P. : AIR2007SC2215 .
6. On the other hand, Mr. Shashi Shekhar Gaur, the learned Counsel for respondent No. 1, has contended that a mere claim made in written statement that husband had divorced his wife is sufficient proof of the fact of a valid Talaq. In order to buttress this contention, the learned Counsel has relied on the case of Abdul Mannan v. Saira Khatoon 2000(4) Crimes 438 a Division Bench decision of the Patna High Court. He has further contended that since the petitioner was divorced, application under Section 125 CrPC was not maintainable. At best she could have filed her application under Section 3 of the Muslim Women (Protection of Right on Divorce) Act, 1986.
7. Heard learned Counsel for the parties, perused the impugned order and the material available on record.
8. A person's action should be in accordance with, both the Constitution of India, as well as, in accordance with personal law, to which he is subject to. The Constitution of India in its preamble not only promises equality, but most importantly, ensures social and economic justice. Articles 14 and 15(3) and provisions of the directive principles speak about woman empowerment. In an era of gender justice, personal laws also need to be re-interpreted in the light of constitutional mandates and philosophy. It is, indeed, a misnomer that a Muslim husband has unbridled, uncontrolled, unlimited and unilateral power to divorce his wife. Such a power is neither granted by the Islamic Law, nor warranted under the constitution of India. Islam has always stood for equality amongst people. It has championed the cause of woman as well. The whole Koran expressly forbids a man to seek pretext for divorcing his wife, so long as she remains faithful and obedient to him. 'If they (namely, women) obey you, then do not seek a way against them'. (Koran IV:34). The Islamic law give to the man primarily the faculty of dissolving the marriage.
9. Justice V.R. Krishna Iyer in a case decided by Kerala High Court, A Yusuf Rawther v. Sowramma : AIR1971Ker261 observed that 'the Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously'. Therefore, the requirement of a valid talaq under Islamic law is that: firstly, talaq must be for a reasonable cause, and secondly, it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one from the wife's family and the other from the family of husband. If their attempts for reconciliation fail, talaq may be effected.
10. Keeping in view the requirement of Islamic law in mind, as observed in the case of Shabnam Ara (supra), Hon'ble Supreme Court held that: 'we are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed'. Similar view has also been taken in the case of Iqbal Bano v. State of U.P. : AIR2007SC2215 .
11. In view of the these two pronouncements of the Hon'ble Supreme Court, the view taken by Patna High Court in Abdul Mannan v. Saira Khatoon 2000(4) Crimes 438, obviously stands impliedly over ruled. Therefore, the case of Abdul Mannan (supra) does not come to the rescue of the respondent No. 1.
12. In the present case, the learned trial court had clearly observed that the respondent No. 1 had failed to prove that he had communicated the talaq through a registered letter dated 15-11-2001. According to the learned Counsel for the petitioner, the respondent claimed, in his testimony, that he had divorced the petitioner. Therefore, the learned trial court had taken the date of divorce as 15- 12-2003. However, such an approach of the learned trial court is clearly untenable. For, a bald statement made by the respondent No. 1, uncorroborated by any sort of evidence, oral or documentary, cannot be taken as proof of divorce. The burden to prove that he had given valid talaq to the petitioner, clearly lay on the shoulder of the respondent No. 1. Since, he had failed to prove this plea, the learned trial court has erred in holding that the petitioner stood divorced from 15-12-2003. Since the first premise of the reasoning does not exist, therefore, the second premise that the petitioner would be disentitled to claim maintenance for the period of Iddat of three months is equally devoid of any merit. Since, the petitioner has not been validly divorced, she is certainly entitled to file an application for maintenance under Section 125 Cr.P.C.
13. The contention raised by learned Counsel for the respondent No. 1 that the petitioner should have applied under the provisions of the Act, 1986 is unsustainable. For, the said Act applies only to divorced woman and not to woman who have not been divorced. Therefore, there was no occasion for the petitioner to seek maintenance under the said Act. Hence, the application under Section 125 Cr.P.C. was validly filed. However, the conclusion drawn by the learned trial court with regard to petitioner are legally unsustainable.
14. Therefore, the impugned order dated 22-1-2004 is modified to the extent that the petitioner shall be entitled to maintenance of Rs. 1000/- per month from the respondent No. 1 from the date of filing the application under Section 125 Cr.P.C. She would also be entitled to interest on the arrears of maintenance at the rate of 6% per annum from the date of filing the application till the date of realisation. The trial court is directed to ensure the compliance of this order within a period of two months.
15. In the result, the petition is allowed, as indicated above. There shall be no order as to costs.