JUDGMENT Mahesh Chandra, J. - This is a defendant's second appeal against the judgment and decree of the temporary Civil and Sessions Judge, Deoria. 2. The suit was filed by Smt. Sandunnisa and her minor son Majeed Sheikh, plaintiff respondents for recovery of Rs. 600/- as dower debt and a sum of Rs. 40/- per month as maintenance allowance against Sattar Sheikh defendant-appellant. The plaintiffs alleged that Smt. Sandunnisa the wife of Sattar Sheikh appellant and her son had been turned but by the appellant, who neglected to maintain them. According to them the dower agreed upon was Rs. 1,000/-and two Asharfis and that half of it was prompt and the other half deferred. The defence was that Smt. Sandunnisa had become unchaste and the appellant had divorced her eight years back, that Majid Sheikh was born after the divorce and was not the legitimate son of the appellant, and that the dower agreed upon was Rs. 135/- which had been paid in full. 3. The defendant appellant took time on the date fixed for hearing, and another date was fixed for evidence and final hearing. On that date the defendant-appellant did not turn up and the application for . adjournment moved by his counsel was rejected. The case was then decided under Order XVII, Rule 3, C. P. C. The suit - was decreed for recovery of Rs. 600/- as dower and Rs. 30/- per month as maintenance. The appellate court dismissed the first appeal and confirmed the decree. 4. In second appeal, the only contention of the learned counsel for the appellant is that the divorce had become effective from the date the written statement was filed and that the respondent is not entitled to any maintenance allowance after that date. Learned counsel for the respondent on the other hand contends that there was no pro-noun cement of divorce rally. Nor was there any divorce in writing in the customary form. According to the respondents the allegation in written statement was not with the intention of operating as a pronouncement of Talaq. Learned counsel for the respondent on the other hand contends that there was no pro-noun cement of divorce rally. Nor was there any divorce in writing in the customary form. According to the respondents the allegation in written statement was not with the intention of operating as a pronouncement of Talaq. His contention is that since the defendant appellant had not the courage to come into the witness box to prove that he had divorced her, it has not been proved that there was a divorce earlier, and that the mere allegation in the written statement will not operate as a divorce even from the date the written statement was filed. 5. It is not disputed that ,the parties are Hanafi Muslims. As mentioned by Taubji in his Mohammedan law. (Section 140) under Hanafi (but not Shia) law the pronouncement of a single talaq is valid. This mode of talaq is generally disapproved, but legally it is valid under Hanafi law even though in this mode the prophet's direction as to the time when and occasion on which divorce may be pronounced arc both disregarded. It is true that a divorce made in this form is revocable, but that is not material here. 6. In 16th Edition of Mullas's Principles of Mohammedan Law edited by the Hon. Mr. Justice Hidayatullah (now Chief Justice of India) it is mentioned that Talaq may be effected orally or by a written document called the talaqnama. A talaqnama may only be the record of a fact or an oral talk or it may be a deed by which the divorce is effected. The divorce itself may be in the customary form or in an unusual form. If it is properly superscribed and addressed so as to show the name of the writer and the persons addressed, it is in customary form. If it is not so superscribed and addressed, it is said to be in an unusual form. According to Mulla's Principles of Mohomedan Law if it is in customary form, it is called "manifest" provided that it can be easily read and comprehended. If it is in customary form and manifest, the intention to divorce is presumed. 7. If it is not so superscribed and addressed, it is said to be in an unusual form. According to Mulla's Principles of Mohomedan Law if it is in customary form, it is called "manifest" provided that it can be easily read and comprehended. If it is in customary form and manifest, the intention to divorce is presumed. 7. The actual words used in paragraph 3 of the written statement relied upon by the learned counsel for the appellants are :- Ham Muddalya ne muddaya ke talaq de diya our muddalya ne denmalnar mar kar diya. Us wakt se darmiyan fariken rishta zan vo shao kayam nahin hai." 8. Translated into English, it means "The defendant divorced the plaintiff and the plaintiff remitted the dower debt. Since then the relationship of husband and wife has ceased to exist between the parties." It will be evident that what was alleged in this paragraph earlier was that Smt. Sandunnisa became of loose character and that eight years ago there was an intervention by the people. It was then that the divorce was given by the appellant. Since then there has been no relationship of husband and wife between them. There is no doubt that since the defendant has not come into the witness box and has not produced any evidence it has not been proved that she was actually divorced eight years ago. The learned counsel for the appellant however relies on the allegation in the written statement itself as amounting in law to a divorce from the date when the written statement was filed. 9. Hamilton's translation of Hedaya Volume I, Chapter II dealing with divorce at page 221 says, "if a man says to his wife that 'you are under divorce yesterday' and it should be that he married as this day, divorce does not take place at all because he has here referred to a period in which he was not competent to pronounce it and therefore his divorce is nugatory, the same as if he were to say you are under divorce before my existence. But, in the present case, if he had married her before the time of which he speaks, divorce takes place at the time of his speaking; because, if a man signify a divorce in the preterite form, it is an indication in the presence and hance the divorce takes place accordingly, this expression being an indication of what is now, and not a relation of what is past, as it does not appear that the pronounced any divorce yesterday, so as that he should now give intelligence thereof." 10. It will be apparent that if it is stated "You are under divorce yesterday" and the marriage had taken place earlier the divorce will take effect from the day the statement is made and not from "yesterday" in case it is not proved that there had been any actual divorce yesterday. The reason for saying so, according to Hedaya, is that what he has said is an indication of what is now the state of affair. 11. Baillie in his Digest of Mohammdan Law at page 222 says : 12. If a man should say to his wife, 'Thou art repudiated yesterday, when he had married her only today nothing takes place, because the reference is to a time when he had no power to repudiate her; but if he had married her before yesterday, repudiation would take effect on the instant." 13. This is also a translation of Hedaya Vol. II page 296 is mentioned case No. 42 which is mentioned in Hamilton's Hedaya. 14. The matter is also referred to in Macnaughten's Principle and precedents of Mohammedan Law which is a selection of legal opinion involving these points. At page 296 is mentioned case No. 42 which is as follows :- Q. A person on the 20th of Suffar in the year 1232 Hijree (corresponding with the 7th Pous of 1224 B. S. declared that he had repudiated his wife by three divorces, agreeably to the rules of the Mohammedan Law, from the year 1178 or upwards of forty-six years back. In this case, from what date should the divorce be held to take effect ? In this case, from what date should the divorce be held to take effect ? R. Under the above circumstances, if the wife deny the fact of her having been divorced by the husband the divorce according to law, should be held to take effect from the date on which it was declared, as is laid down in the Shurthi Vigaya-If a person say to his wife, whom he married previously to the day to which he referred the divorce', you are divorced yesterday, and she deny it, the divorce takes effect only from the moment of its being declared." 15. Thus according to this case, if a man says to his wife that she had been divorced yesterday or an earlier period the divorce takes effect from the instant of its declaration in case it is not proved that she was actually divorced yesterday or on a previous day. 16. Ammer Ali, in his Mohammedan Law Vol. II Third Edition at page 518, says that according to Hanafi doctrine, although acknowledgement of a talak viz. an acknowledgement by a man he had divorced his wife extracted from him under compulsion, is ineffective, a talak actually pronounced under compulsion valid. According to Alaingin a talak pronounced by any husband who is a mature age (baligh) and possessed of understanding (aakil) is effective, whether he be free or a slave, willing or acting under compulsion, and even though it were utter in sport or jest, or inadvertently by a mere slip of the tongue. But he must be awake at the time when he pronounces the talak. Amir Ali goes on to say (after this quotation from Alamgiri :- 17. Whilst an acknowledgement extracted from the husband by compulsion (ikrahi), whether embodied in writing or not is in-effective, an acknowledgement of talak made in jest or falsely will take effect (kazdan) 'judicially', though it will not be any force in for conscientia; in other words, the man is bound to retract, but if he does not, the Kazi will give effect to it" Thus according to Ammer Ali an acknowledgement of Talaq even though made in jest or falsely if not retracted will be given effect to judicially. There is certainly no allegation in the present case that the acknowledgement of Talak in the appellant's written statement has ever been retracted. There is certainly no allegation in the present case that the acknowledgement of Talak in the appellant's written statement has ever been retracted. It is not even alleged that it was made in a jest or compulsion. So according to Ammer Ali's view it will have to be given effect to from the date the written statement was filed. 18. Bailee's view mentioned above has also been quoted by Tyabji in his book on Mohammedan Law III Edition at page 226 at item 10 under Section 147. " (10) He says to his wife 'though art repudiated yesterday'. She is divorced immediately if she was his wife 'yesterday', but not otherwise." 19. Mulla's Principles of Mohammedan Law (sixteenth edition) also quotes with approval a decision of this Court that "If an acknowledgement of divorce is made by the husband the divorce will be held to take effect at least from the date upon which the acknowledgement is made." This quotation is from Asmat Ullah v. Khatun-in-nisa, 1939 ALJ 804. In that case the defence was that the plaintiff had been divorced by her deceased husband during his lifetime and she was not entitled to anything in lieu of dower or to any share in her deceased husband's estate. The lower appellate court had held that there was absolutely no evidence on record to prove that the plaintiffs husband ever pronounced divorce. In a criminal proceeding instituted by the plaintiff in 1930 about fifteen years before her husband's death the husband had alleged in his written statement that three or four months before the date upon which he filed this statement he had divorced his wife according to Mohammedan Law. A similar statement was made by him on oath on 12th January, 1915 in which he had deposed that he had divorced his wife by repeating thrice "I divorce you". This Court referred to Macnaghten's Principles and Precedents of Mohammedan Law 1890 Edition, at page 296, Case XLII and observed :- "One may reasonably infer from the passage above quoted that if an acknowledgement of Talak is made by the husband the divorce will be held to take effect at least from the date upon which the acknowledgement is made. Learned counsel for the plaintiff was unable to refer us to any authority to the contrary. Learned counsel for the plaintiff was unable to refer us to any authority to the contrary. We are constrained, in the circumstances, to hold that the evidence upon the record establishes that the plaintiff was divorced by her husband in 1915." 20. The year 1915 falls prior to the death of the husband in 1930 and was the year in which the criminal proceedings had been instituted and the husband had mentioned in the written statement that three or four months before the date when he filed the statement he had divorced his wife. Thus, on the basis of the acknowledgement the Division Bench of this Court held that the plaintiff was divorced by her husband in the year when the acknowledgement was made. Whether it be in the written statement or in his statement before the Magistrate. This Court did not hold that the divorced was pronounced on the particular date or time alleged by the husband, but only accepted it to take effect from the date when the acknowledgement was made. So, according to this decision of this Court divorce would be effective from the date when the written statement containing the allegations of the divorce was filed. 21. The learned counsel for the respondent contended that this case was not pressed in the court below. This is true, but the acknowledgement was made in the written statement filed in this very case. Consequently, it is a pure question of law as to what the effect of the acknowledgement is. We are not to proceed on the basis that divorce was actually pronounced at the time when it is said in the written statement to have been pronounced, but on the basis of the acknowledgement itself. In Asmat Ullah's case this Court had proceeded only on the basis of the acknowledgement and not on the basis of the actual pronouncement of the divorce alleged in the written statement or in the witness box. That is the reason why the conclusion arrived at was not that the wife had been divorced three or four months before the date of that written statement as alleged in the written statement or as stated on oath on 12th January, 1945 by the husband, but that it was held to have effect from the date upon which the acknowledgement was made. It is true that we would not go into a question of fact after a finding of the court below unless it is vitiated by an error of law, but when it is a pure and simple question of law a party is entitled to take up a purely legal plea in second appeal. We are not taking the written statement, nor was it taken in that case, to prove that the divorce had actually taken place on the date mentioned in the written statement and became effective from that date, but we are proceeding merely on the basis of what is said in the written statement itself and considering the divorce to have taken effect not from the date when it is alleged to have been actually pronounced, but from the date when it was acknowledged in the written statement. It is immaterial whether or not the actual pronouncement of the divorce at the time alleged in the written statement is actually proved. The contention of the learned counsel for the respondent is therefore without force. 22. The learned counsel for the respondent then contended that the pronouncement of divorce has to be oral and that the written statement or the acknowledgement of the divorce therein is not oral, nor in the customary manner and so did not amount to a divorce. This contention is without force. It is only in Shia Law that the divorce must be pronounced orally in the presence of competent witnesses and a Talaq communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally. But amongst Hanafi Muslims a talaq, may, as already mentioned, be either oral or in writing. Baillie in his Digest of Mohammedan Law, Part first, at p. 233 dealing with the question of repudiation of marriage in writing says that writings regarding the repudiation of marriage or divorce are of two kinds : Mursoom or customay; and ghuer mursoom, or unusual. The former are, according to Baillie, those which are properly superscribed and addressed being such as are written to absent persons and bear, on their face, from such an one to such an one. The latter are according to him. The former are, according to Baillie, those which are properly superscribed and addressed being such as are written to absent persons and bear, on their face, from such an one to such an one. The latter are according to him. those which are not so superscribed and addressed, and they are also of two kinds; moostubean or manifest and ghuer moostubeen, or not manifest: the manifest being such as are written on paper, or a wall, or on the ground, in such a manner that they can be comprehended and read; and those which are not manifest are such as are written on the air or water, or something that cannot be comprehended and read. By writings that are not manifest repudiation cannot be effected, even though intended; whereas, by writings that are menifest, though not customary, repudiation is effected, when such is the intention, but not otherwise; while by writings of the customary, or regular description, it is effected, whether intended or not. This shows that even in ghuer Moostubeen repudiation in writing if the repudiation is manifest and divorce and repudiation is intended, repudiation or divorce is effected. This written statement may be said to be a ghuer Moostubeen kind of repudiation but, there is no doubt that it is manifest, for it is written on paper and not on air or water "that cannot be comprehended or read." There is also not the slightest doubt that the words used in the written statement show that the divorce was intended, for the claim there was also of future maintenance and the way chosen by the respondents to avoid future maintenance was the acknowledgement of the divorce. This acknowledgement in the written statement was intended to act as repudiation and thereby defeat completely the claim of future maintenance. 23. Ameer Ali in his book Mohammedan Law, Vol. 2 at page 523 after dealing with the Shiah doctrine that the Talak must be oral observed :- "The Sunnis, on the contrary, hold that a talak may be effected by writing as well as words. Writings, among them, are said to be of two kinds, viz., Mersumah (customary) and ghairmarsumah (not customary). When repudiation is given by a writing of the description called customary, it is effective, even when there is no real intention On the part of the husband to divorce the wife. Writings, among them, are said to be of two kinds, viz., Mersumah (customary) and ghairmarsumah (not customary). When repudiation is given by a writing of the description called customary, it is effective, even when there is no real intention On the part of the husband to divorce the wife. But where the writing, though marsumah, is written so that it is not intelligible or if it is written on something that cannot be deciphered, there will be no talak, even if he had the intention. In the case of non-customary writings, if there is any ambiguity, the talak does not take effect: when there is no ambiguity and the meaning of the writer is "manifest", the repudiation is valid." 24. Thus, it is clear that according to Ameer Ali also on the basis of ratawai Alamgiri a repudiation or divorce is valid even though it is in writing in a non-customary form, if the meaning of the writer is manifest. 25. On page 223 Tyabji in his book on Mohammedan Law says that "a pronouncement of talaq in writing may be so expressed as to take effect either from the time when it is written or from the time when it reaches the wife." In his opinion the pronouncement need not be in the presence of the wife or even addressed to her. 26. In Asha Bibi v. Kadir Ibrahim Rowther, 33 ILR Mad. 23 Munro and Abdur Rahim, JJ. held; that "The authority with which the husband is armed over the wife is of a disciplinary nature and gives him the power to control her liberty of movement, and in eases of flagrant misbehaviour and disobedience even to inflict corporal chastisement on her, provided the exercise of his authority does no in any case infringe her right to the safety of life, limb or health nor amounts to acuity such as by depriving her of social relations with her own people. The right to domestic authority is conceded to the husband rather than to the wife in consideration as hinted above of the pecuniary burden imposed upon the husband and also because of the presumed superiority of the male sex in judgment and discretion. For the same reasons the husband is recognised as having an absolute right to put an end to the marriage by his private act. For the same reasons the husband is recognised as having an absolute right to put an end to the marriage by his private act. No doubt an arbitrary or unreasonable exercise of the right to dissolve the marriage is strongly condemned in the Koran and in the reported sayings of the Prophet (Hadith) and is treated as a spiritual offence. But the impropriety of the husband's conduct would in no way affect the legal validity of a divorce duly effected by the husband. Upon divorce being pronounced, the wife becomes at once entitled to be paid her dower, unless it has been paid before and after a certain period of probation she is free to marry again." 27. Munro and Abdul Rahim, JJ. observed further that Hedaya is undoubtedly a book of Supreme authority on Hanafi law but they say that the interpretation of Hamilton is not always correct. They go on to observe that "Hamilton's 'Hedaya' is not a translation . of the original Hedaya in Arabic, but of a certain commentary of it prepared in Persian especially for the use of Mr. Hamilton, who apparently was unfamiliar with Arabic." The Persian commentary is not ordinarily available and is seldom, if ever, used among the Mohammedans nor ever referred to as an authority. Munro and Abdur Rahim, JJ. observed : "Mr. Hamilton's translation of it has however found vogue in the Courts and is constantly relied on as authority on questions of Hanafi law, though often under the wrong impression that it is a translation of the 'Hedaya' itself. But no statement in Mr. Hamilton's book which is not to be found in the original 'Hedaya' can be accepted as an authoritative exposition of the Mohammedan law on a particular point unless it agrees with the principles of that law or with what is laid down by well-known Mohammedan Jurists of authority on the subject." 28. Their lordships of the Madras High Court then went on to consider Fatawa Alamgiri and Baillie's Digest, and observed : 29. Similarly by the definition of Talaq given in Fatawa Alamgiri quoting from Bahmr Raiq and cited in Farzund Hossein v. Janu Bibee, (1879) ILR Cal. Their lordships of the Madras High Court then went on to consider Fatawa Alamgiri and Baillie's Digest, and observed : 29. Similarly by the definition of Talaq given in Fatawa Alamgiri quoting from Bahmr Raiq and cited in Farzund Hossein v. Janu Bibee, (1879) ILR Cal. 588 from Ballie's "Digest" at p. 205 what is meant by the passage Repudiation or Talak as the term is defined in law is a release from the marriage tie either immediately or eventually by the use of special words is not that the law gives effect to a divorce only if some special or particular words are used, but that Talak denotes dissolution of the marriage tie when it is effected by words of the husband conveying that meaning as distinguished from the setting aside by the Court of a marriage on grounds like those mentioned above." 30. It was further held that the absence of the wife makes no differences to the validity of a divorce otherwise duly affected. 31. It is thus dear that no particular form or words are necessary for the divorce to take effect. What is important is that if the divorce or the acknowledgment of divorce is in non-customary form it should be manifest and the intention of the person must be clear and defined. There can be no doubt that the intention of the appellant in the written statement was defined and dear regarding the repudiation or divorce. The divorce would, therefore, take effect not from the date when it is alleged to have been pronounced, but from the date when it was so acknowledged in the written statement. 32. Learned counsel for the respondent relied on Zahar Husain v. Ummat-Ur-Rahman, ILR XLI Alld. 278. This is not a case in point it all. It was for a dissolution of marriage brought by a Mohammedan lady against her husband. The grounds stated in the plaint were that the defendant had treated the plaintiff with cruelty and intended to kill her or cut off her nose and more particularly that he had stated before several persons that the plaintiff had had illicit intercourse with her brother Azir-ur-Rahman and had imputed fornication to her. The trial court gave the plaintiff a decree declaring the marriage to be dissolved. The first appellate court dis-missed the appeal and confirmed the decree. This Court then dismissed the appeal with costs. The trial court gave the plaintiff a decree declaring the marriage to be dissolved. The first appellate court dis-missed the appeal and confirmed the decree. This Court then dismissed the appeal with costs. During the course of the judgment what they discussed was the effect of law. Thus, the fact of a husband having (whether truly or falsely) charged his wife with adultery, will entitle her to claim a judicial divorce. In Baillie's Mohammedan Law it was mentioned that when both parties have taken the laan the Judge is to separate them. In that case this Court did not go into the question of acknowledgement of the divorce, for the matter was not at all before them. The decision reported in Ashmat Ullah'sl case is more to the point and is clearly in accordance with the ' earlier authorities like the 'Hedaya', Fatwa Alarogiri and its interpretation by Baillie, Tyabji and Ameer Ali that an acknowledgement of divorce is sufficient to take effect as divorce at least from the date of the acknowledgement. Nor can it be said that acknowledgement of divorce in the written statement did not come to the notice of the wife, for the case was contested and the client and the counsel both had full knowledge of what was alleged in the written statement in reply to the plaint. 33. The result is that the appeal is partly allowed and the decree of the trial court as confirmed by the first appellate court is modified to the extent that in respect of the maintenance allowance she will get Rs. 20/-per month as her allowance until the expiry of the period of Iddat, which will be three months and thirteen days after the filing of the written statement. There-after, she will not be entitled to any maintenance allowance. Her son Majid Sheikh will, however, get Rs. 10/- per month as maintenance allowance till he attains majority. In the circumstances of the case the parties will bear their own costs.