Najmunbee W/O S.K. Sikandar Vs. S.K. Sikandar S.K. Rehman and anr. - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 125 - muslim women (protection of rights on divorce) act, 1986 - sections 3(a), 59 - maintenance - right of muslim women to maintenance for herself and her child - alleged talaq by husband - muslim husband cannot repudiate the marriage at his will without reasons - no pre-divorce reconciliation attempted between the parties through appointment of two arbitrators - non-production of talaqnama - contents of talaqnama not proved - no dissolution of marriage by valid talaqnama - application filed by the wife under section 125 maintainable - grant of maintenance to wife by magistrate justified.;it is obvious that muslim husband cannot repudiate the marriage at his will without reasons and at his mere whims and caprice and even muslim law mandates pre-divorce reconciliation between the parties through appointment of two arbitrators, who would act as judges. admittedly in the present case, the reasons as to why divorce has been given are absent.;further unless talaqnama is produced on record, contents of talaqnama cannot be proved and in such circumstances, it is difficult to hold that the marriage tie between the parties was dissolved by valid talaqnama or divorce. since talaqnama appears to have been given without assigning any reasons, it cannot be said that it was a valid talaqnama under mohammedan law.;in the present case, factum of divorce has not been proved and, therefore, application filed by the wife under section 125 of the code of criminal procedure was maintainable because it was not the application by a divorced muslim woman and hence, the ratio laid down by this court in the case of karim abdul rehman, 2000 (3) mh. l. j. 555 has no bearing on the facts and circumstances of the present case. in that view of the matter, the magistrate was perfectly justified in granting maintenance to applicant wife. - - he further contended that there was no proof to show that the marriage between the parties was dissolved by oral or written talaqnama on 26-5-1995 and, therefore, application under section 125 of code of criminal procedure was perfectly maintainable before the magistrate. (2) an oral talaq becomes effective -(a) if the words used are express or clearly show an intention to divorce; their lordships observed in para (22) as under :22) a divorce by the husband is talaq and it has its oral as well as written forms. 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. if the attempts failed, talaq must be effected. while deciding the amount, regard will be had to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband and the like circumstances. in that view of the matter, the learnedmagistrate was perfectly justified in granting maintenance to applicant wife.s.t. kharche, j.1. heard shri khan, learned counsel for the applicant, shri wankhede, learned counsel for the respondent no. 1 and shri ahirkar, learned counsel for the respondent no. 2.2. the judgment and order dated 19-1-1999 passed by the learned additional sessions judge, washim in criminal revision application no. 51/1998 whereby he reversed the order of maintenance passed by the learned judicial magistrate, first class on 21-8-1998 in miscellaneous judicial case no. 35/1997 is under challenge in this revision.3. the brief facts are required to be stated as under:the applicant wife filed application seeking maintenance for herself and minor child under section 125 of code of criminal procedure in the court of learned judicial magistrate, first class. the respondent husband strongly resisted the claim of maintenance on the ground that he had given divorce to his wife as per provisions of mohammedan law by pronouncing talaq at three times and copy of talaqnama was served on the wife. the parties adduced evidence before the learned magistrate and on considering the evidence, the learned magistrate held that factum of divorce has not been proved and consequently, granted maintenance. the said application was allowed on 21-8-1998 and respondent no. 1 husband was directed to pay maintenance at the rate of rupees three hundred per month to the wife and at the rate of rupees one hundred fifty per month to the minor daughter. admittedly grant of maintenance to minor daughter is not under challenge. the respondent no. 1 being aggrieved by the order passed by learned magistrate had filed criminal revision application before learned additional sessions judge, who allowed the said revision mainly on the ground that the husband had given divorce to his wife in the year 1995 and, therefore, she was not entitled to claim maintenance under section 125 of code of criminal procedure after coming into force of the muslim women (protection of rights on divorce) act, 1986.4. shri khan, learned counsel for the applicant wife, contended that the learned additional sessions judge has committed an error in reversing the finding of magistrate in respect of proof of talaqnama. he contended that husband adduced the evidence to show that he had given divorce by pronouncing oral talaq and subsequently it was reduced into writing and then it was communicated to the wife by post. but, admittedly there was no documentary evidence on that point. shri khan pointed out that the impugned order passed by the learned additional sessions judge is unsustainable in law because he relied on uncodified provisions of islamic law. he further contended that there was no proof to show that the marriage between the parties was dissolved by oral or written talaqnama on 26-5-1995 and, therefore, application under section 125 of code of criminal procedure was perfectly maintainable before the magistrate. in support of these contentions, he relied on the decision of the apex court in the case of danial latifi and anr. v. union of india, : 2001crilj4660 and decision of the full bench of bombay high court in the case of karim abdul rehman shaikh v. shehnaz karim shaikh and ors., 2000 (3) mh.lj. 555, and another full bench decision of the bombay high court in the case of dagdu chotu pathan v. rahimbi dagdu pathan and ors., 2002 (3) mh.lj. (f.b.) 602.5. shri wankhede, learned counsel for the respondent no. 1, contended that there was a valid divorce between parties on 26-5-1995 and, therefore, application under section 125 of code of criminal procedure would not be maintainable in view of provisions of section 3(a) of muslim women (protection of rights on divorce) act, 1986. he further contended that factum of written talaq has been duly established and even the wife admitted in her evidence that she had received talaqnama by post. he contended that as per provisions of section 59 of islamic law, talaq was pronounced and thereafter it was reduced into writing and it was served on the wife by post and hence, finding of the learned additional sessions judge is sustainable in law.6. i have given thoughtful consideration to the contentions canvassed by the respective counsel. in order to appreciate their contentions, it may be stated that islamic law is not a codified law. section 59 incorporated in the chapter of dissolution of marriage included in the commentaries on mohammedan law by mr. b. r. varma - 7th edition published in the year 1997 by law publishers (india) pvt. ltd., allahabad reads thus:'section 59 - talaq how pronounced -(1) a talaq may be effected by words expressed either orally or in writing or by signs where the husband is unable to do so.(2) an oral talaq becomes effective - (a) if the words used are express or clearly show an intention to divorce; or(b) where the words used are not express, if it is proved that there was an intention to effect a divorce. (3) a talaq in writing becomes effective -(a) if the writing is in the customary form, showing the name of the writer and the addressee; or(b) if it is proved that there was an intention to effect a divorce. (4) it is not necessary that a talaq should be pronounced in the presence of the wife or should be addressed to her.(5) a talaq may be pronounced conditionally or so as to take effect immediately or at a future time or on the happening of any contingency.7. it is undisputed position of law that islamic law on divorce is not a codified law and this section 59 appears to have been adopted from bail i, 213, 223, 229 hed 76. this was old law and cannot be said to be in existence in view of the recent pronouncement of judgment by full bench of this court in the case of dagdu chotu pathan.8. the full bench decision of the bombay high court in the case of dagdu chotu pathan (cited supra) would be squarely applicable in relation to proof regarding factum of divorce and as to what are the requisite conditions, which a muslim husband can adopt at the time of giving divorce to his wife. the hon'ble lordships have considered the question as to whether a muslim husband has a right to divorce his wife without reasons and at his mere whims and caprice and whether muslim law mandates pre-divorce reconciliation between the parties. their lordships observed in para (22) as under :'22) 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 or 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 recon ciliate 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 is obvious that muslim husband cannot repudiate the marriage at his will without reasons and at his mere whims and caprice and even muslim law mandates pre-divorce reconciliation between the parties through appointment of two arbitrators, who would act as judges. admittedly in the present case, the reasons as to why divorce has been given are absent. though talaq is said to have been got typed, but it has not been placed on record. though learned additional sessions judge observed in his judgment that exh. 20 is the divorce deed, it is pointed out by shri khan, learned counsel for the applicant wife, that exh. 20 is the deposition of a defence witness no. 2 by name sheikh laddu. in such circumstances, it appears that written divorce deed or written or typed talaqnama was not placed on record and the learned additional sessions judge proceeded on presumptions, surmises and conjectures.10. it was pointed out by shri wankhede, learned counsel for the respondent husband, that wife admitted in her deposition that she had received talaqnama. even presuming that she had received talaqnama by post, the husband is supposed to retain copy of talaqnama and produce on record. unless talaqnama is produced on record, contents of talaqnama cannot be proved and in such circumstances, it is difficult to hold that the marriage tie between the parties was dissolved by valid talaqnama or divorce. since talaqnama appears to have been given without assigning any reasons, it cannot be said that it was a valid talaqnama under mohammedan law. in that view of the matter, it is quite obvious that the impugned order passed by the learned additional sessions judge is unsustainable in law.11. it is contended by the learned counsel for the respondent husband that application under section 125 of code of criminal procedure by the divorced wife is not maintainable and she can have recourse to provisions of section 3(a) of muslim women (protection of rights on divorce) act. in this context, reliance is placed on the decision of the full bench of this court in the case of karim abdul rehman sheikh (cited supra). in this case, it has been observed that the husband's liability to pay maintenance to a divorced wife under section 3(a) of the muslim women (protection of rights on divorce) act, 1986 ceases the moment iddat period gets over. he has to pay maintenance to her within the iddat period for the iddat period. but he has to make reasonable and fair provision for her within iddat period, which should take care of her for the rest of her life or till she incurs any disability under the muslim women act. while deciding the amount, regard will be had to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband and the like circumstances. if the husband is unable to arrange for such a lumpsum payment, he can ask for instalments and the court shall consider granting him instalments. till the husband makes the fair and reasonable provision, the magistrate may direct monthly payment to be made to the wife even beyond the iddat period subject to the fixation of the amount of fair and reasonable provision. it is further observed in para 63 (ii) and (iii) that orders passed under section 125 of the code prior to the enactment of the muslim women act are not nullified by reason of coming into force of the muslim women act. such orders are binding on both sides and can be executed under section 128 of the code. the muslim women act does not divest the divorced woman of the right to get maintenance under section 125 of the code vested in her by reason of orders of the competent court passed prior to its coming into force. after commencement of the muslim women act, a muslim divorced wife cannot apply for maintenance under the provisions of chapter ix of the code. it is only under section 5 of muslim women act by agreement can the husband and the divorced wife approach a magistrate under chapter ix of the code.12. in the present case, i am of the considered view that factum of divorce has not been proved and, therefore, application filed by the wife under section 125 of code of criminal procedure was maintainable because it was not the application by a divorced muslim woman and hence, the ratio laid down by this court in the case of karim abdul rehman (cited supra) has no bearing on the facts and circumstances of the present case. in that view of the matter, the learnedmagistrate was perfectly justified in granting maintenance to applicant wife. theorder passed by the learned additional sessions judge reversing the finding ofthe magistrate is not sustainable in law and thus, revision deserves to be allowed.13. in the result, the revision is allowed. the impugned order passed by thelearned additional sessions judge is hereby set aside and that passed by thelearned judicial magistrate. first class granting maintenance at the rate of rupeesthree hundred per month to the applicant wife is restored. rule is made absolutein the abovesaid terms.