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Madhya Pradesh High Court · body

1995 DIGILAW 811 (MP)

Gulam Hasan v. Johra Bi

1995-10-20

S.B.SHANKAR

body1995
JUDGMENT S.B. Shankar, J. 1. The applicant has directed this revision petition against the order dated 21.12.1992 passed by the Additional Sessions Judge, Khargaun in Criminal Revision No. 35/91, modifying the order of maintenance passed by the Chief Judicial Magistrate, Khargaun in Criminal Case No. 138/89, decided on 11.12.1990. 2. The brief facts of the case are that the non-applicant Johra Bi filed an application before the Chief Judicial Magistrate, Khargaun under Section 3(ii) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 claiming the maintenance allowance at the rate of Rs. 500/- per month and recovery of the amount of dower amounting to Rs. 5,000/-and the price of the articles given to her at the time of marriage amounting to Rs. 31,664/-. The non-applicant claimed the maintenance at the rate of Rs. 500/- per month for the period of Iddat as well as the future maintenance from the date of divorce till the communication of the same to her by the applicant. 3. The petition was resisted by the applicant Gulam Hasan. The learned Chief Judicial Magistrate after considering the evidence of both the parties partly allowed the application of the non-applicant, Johra Bi and awarded Rs. 1,665/- by way of maintenance allowance at the rate of Rs. 500/- per month for the period of Iddat and Rs. 5001/-by way of amount of Mahar and also Rs. 9,000/- by way of the amount of properties given to her at the time of marriage and the applicant was directed to pay the total amount of Rs. 15,666/- to the non-applicant. 4. Aggrieved by the Court of the learned Chief Judicial Magistrate, both the parties filed a revision petition before the Additional Sessions Judge, Khargaun. The learned Additional Sessions Judge by a common order decided the revision petition filed by the parties. The learned Additional Sessions Judge by impugned order dismissed the revision filed on behalf of the applicant whereas the learned Judge, partly allowed the revision of the non-applicant, Johra Bi, holding that she is entitled to the maintenance allowance of Rs. 7,660/- at the rate of Rs. 500/- per month from the date of divorce till the communication of the same to the non- applicant. Aggrieved by this order of awarding additional amount of maintenance allowance of Rs. 7,600/- in favour of the non-applicant, the present applicant has filed this revision petition. 5. 7,660/- at the rate of Rs. 500/- per month from the date of divorce till the communication of the same to the non- applicant. Aggrieved by this order of awarding additional amount of maintenance allowance of Rs. 7,600/- in favour of the non-applicant, the present applicant has filed this revision petition. 5. I have heard the arguments advanced by Mr. A.H. Khan, learned Counsel for the applicant and Mr. D.M. Shah, learned Counsel for the non-applicant. 6. The learned Counsel for the petitioner contended that the under Section 3(ii) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the non- applicant is entitled to get the maintenance allowance after the divorce only for the period of Iddat. The learned Counsel further contended that the learned Additional Sessions Judge has committed an error in awarding the additional amount of maintenance to the tune of Rs. 7,600/- for the period in excess of the period of Iddat after the divorce. 7. In reply, the Counsel for the non-applicant submitted that as per the case of the applicant, he orally divorced the non-applicant on 17.2.1988 but the fact of giving divorce to the non-applicant was communicated to the non-applicant for the first time in reply to the notice dated 27.5.1988 (Ex. A-2). It is also contended that the aforesaid reply was received by the non-applicant on 5.8.1989. Under these circumstances, the learned Additional Sessions Judge, was right in awarding the maintenance amount at the rate of Rs. 500/-per month from the date of divorce till the communication of the same to the non-applicant i.e. 5.9.89. 8. On considering the statement of the witnesses of both the parties, the learned Additional Sessions Judge, has held that at the time of alleged divorce i.e. on 17.2.88 the non-applicant was not present. The Additional Sessions Judge also held that the non-applicant for the first time got the knowledge of the divorce on receipt of the reply to notice (Ex. A-2) on 5.9.88 and therefore, found her entitled to get the maintenance allowance at the rate of Rs. 500/- per month till 5.9.88. 9. In view of the provisions of Mohammedan Law, with regard to the oral Talak, findings recorded by the learned Additional Sessions Judge, appears to be well-founded. A-2) on 5.9.88 and therefore, found her entitled to get the maintenance allowance at the rate of Rs. 500/- per month till 5.9.88. 9. In view of the provisions of Mohammedan Law, with regard to the oral Talak, findings recorded by the learned Additional Sessions Judge, appears to be well-founded. In Mulla's Book on Principles of Mohammedan Law, 18th edition at pages 326 and 327, it is mentioned that for oral Talak if the words are expressed or understood as implying divorce, then it becomes effective for Talak. It is also mentioned, that it is not necessary that the Talak should be pronounced in the presence of the wife or even addressed to her." On page No. 327 of the same book, the learned Writer has expressed that the "Talak pronounced in the absence of the wife takes effect, though not communicated to her, but for the purpose of Dower it is necessary that it should come to her knowledge and her alimony may continue till she is informed about the divorce." 10. In this case, from the findings of the learned Additional Sessions Judge, the present applicant declared to divorce his wife in the presence of the witnesses on 17.2.1988 but at the time of this declaration, presence of the non-applicant was not proved. From the contents of reply to the notice of the non-applicant (Ex. A- 2) fact of the knowledge of divorce was for the first time communicated to the non- applicant on 5.1.1989 and under these circumstances the learned Additional Sessions Judge has awarded an additional amount of maintenance amounting to Rs. 7,600/- cannot be considered to be in violation of any law. 11. The order of the Additional Sessions Judge awarding the additional amount of maintenance till 5.9.89 at the rate of Rs. 500/- per month in favour of the non-applicant is not suffering from any infirmity or illegality and therefore the impugned order passed in favour of the non-applicant does not call for any interference in this revision. 12. In the result, the revision filed on behalf of the applicant, Gulam Hasan is devoid of substance and merits and the same is accordingly dismissed.