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2002 DIGILAW 167 (ORI)

SK. ABDUL RAJAK v. GULBAN BIBI

2002-03-15

P.K.TRIPATHY

body2002
JUDGMENT : P.K.Tripathy, J. - This is the second journey to this Court by the petitioner with respect to the dispute between the parties on the claim of maintenance u/s 125, Cr.P.C. by the opposite party on the ground asserted by her that she is the legally married wife of the petitioner. 2. Opposite party filed Cri. Misc. Case No. 97 of 1993, claiming for maintenance from the petitioner u/s 125, Cr.P.C. on the ground of cruelty and desertion and her destitute condition. While that application was pending in the Court of S.D.J.M., Puri, petitioner filed an application challenging maintainability of the proceeding Under/Section 125, Cr.P.C. on the ground of not taking his consent Under/Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short, 'the Act'), so as to continue the proceeding Under/Section 125. Cr.P.C. He also pleaded, interalia, about a divorce between the parties. That application being rejected by learned S.D.J.M., petitioner unsuccessfully challenged that order in the Court of Sessions, and learned First Addl. Sessions Judge, Puri dismissed that revision on merit. As against that, petitioner filed Criminal Misc. Case No. 4558 of 1998 u/s 482, Cr.P.C. and that was rejected by this Court on the ground of the bar provided u/s 397(3), Cr.P.C. so also on the ground that the plea of divorce advanced by the petitioner being a disputed fact that issue should not be decided as a preliminary issue. Notwithstanding rejection of the application Under/Section 482, Cr.P.C. in that manner, this Court observed that : "However the factum of divorce and consequence thereof may be considered by the learned Magistrate on proper assessment of evidence and the personal law of the parties." It was also observed to afford opportunity of hearing directing the parties to participate in the proceeding in the Court below. After such order the case was transferred to the Court of J.M.F.C., Pipili on jurisdictional ground. At the stage of hearing of the application u/s 125, Cr.P.C. petitioner did not appear and contest. Therefore, on 1.5.2000 the impugned ex parte judgment was passed granting monthly maintenance @ Rs. 500/- (five hundred) in favour of the opposite party. 3. In the Court below opposite party pleaded about a lawful marriage which was being registered on 1.12.1980 at Kharagpur. She also pleaded about ill-treatment and cruelty by the petitioner at the instance of his first wife and children. 500/- (five hundred) in favour of the opposite party. 3. In the Court below opposite party pleaded about a lawful marriage which was being registered on 1.12.1980 at Kharagpur. She also pleaded about ill-treatment and cruelty by the petitioner at the instance of his first wife and children. She averred about no source of income for her whereas the petitioner having sufficient income has neglected to maintain her. Petitioner had filed a written statement denying to the allegation besides stating that opposite party is the wife of one Nashar Ali and during subsistence of that marriage her claim of marriage in the alleged manner with the petitioner is void. He also pleaded about a divorce being given by him to the opposite party on 18.1.1991 on the ground of cruelty on him. Besides that he pleaded about absence of sufficient income to maintain the opposite party. On all such grounds besides the legal ground Under/Section 5 of the Act, 1986 he claimed for dismissal of the application for maintenance. 4. It is noted in the impugned order that while the opposite party has proved her case regarding death of her first husband and a valid registered marriage as per Ext. 1 and subsistence of the same, the petitioner has not been able to prove any of the grounds advanced by him. Learned Magistrate also believed the unchallenged statement of the opposite party regarding the ill-treatment, cruelty and desertion and the capacity of the petitioner to maintain the opposite party. So far as the legal plea raised by the petitioner in his written statement is concerned, learned Magistrate recorded that since the marriage was performed and registered under the Special Marriage Act, dissolution of the marriage as pleaded under the Mohammadan Law is not maintainable. Accordingly, he found the application Under/Section 125, Cr.P.C. maintainable and granted the monthly maintenance in the manner already indicated. 5. At the stage of argument, various pleas have been advanced by the petitioner, but this Court does not find any relevancy of the same to be considered save and except the following contention. 6. Accordingly, he found the application Under/Section 125, Cr.P.C. maintainable and granted the monthly maintenance in the manner already indicated. 5. At the stage of argument, various pleas have been advanced by the petitioner, but this Court does not find any relevancy of the same to be considered save and except the following contention. 6. It is stated by learned counsel for the petitioner and rightly so that even if a marriage was performed between two Mohammadans in accordance with the special Marriage Act, 1954, then also the spouses being governed by their personal law, there can be a dissolution of that marriage in accordance with their personal law. In other words, even if a marriage is performed under the Special Marriage Act, 1954, a husband is entitled to dissolve the marriage by 'Talak', i.e., in accordance with the personal law. To that extent the findings of the learned Magistrate is found not in accordance with the law and, accordingly that finding is set aside. 7. Learned counsel for the petitioner slates that when the petitioner has pleaded about the divorce since 18.1.1991, that divorce is effective from that date in view of the ratio in the case of Sayea Nawaj AIH alias Neti V, Rasida Begum, Vol. 33 (1991) OJD 212 The ratio in the above cited decision cannot be ipso facto applied to this case because of the factual distinction in respect of the plea of marriage and divorce. Petitioner in his written statement, at one stage, has denied to the marital relationship and alternatively he has pleaded the opposite party to the legally married wife of another person and ultimately has pleaded about a divorce in the aforesaid manner from the aforesaid date. When the opposite party has denied to the allegation of divorce, therefore, in this case the plea of divorce, as pleaded by the petitioner, can be effective from the date of filing the written statement as per the ratio in the case of Subnam Ara Bibi alias Subnam Bibi V. Malik Babar AH (1999) 16 OCR 440, in which it has been held that : "***. Definition of the term 'divorced woman' goes to clearly show that there must be a divorce in accordance with the Muslim Law, Therefore, the question of marriage and or the factum of divorce is essentially a question of fact. Definition of the term 'divorced woman' goes to clearly show that there must be a divorce in accordance with the Muslim Law, Therefore, the question of marriage and or the factum of divorce is essentially a question of fact. According to the authorities like Mulla plea of divorce from a particular date as reflected in the written statement, if any accepted for any valid reason, then it must be held to be effective from the date of filing of the written statement because the intention of giving Talak is clearly stated and communicated to the wife through such written statement. Therefore, in a case where the wife claims continuance of the status and the husband claims dissolution of the status by divorce that issue shall be the subject matter of enquiry in the proceeding to record a finding as to whether there was such a divorce or not. So far as to take a prima facie view the date of divorce can be prirna facie accepted from the date of filing of the written statement and not from any previous date if the same is not admitted. ***" In this case, when the petitioner has not proved about a divorce on 18,1.1991 and he has come forward with prevaricating statement relating to marital relationship and the divorce, therefore, as settled by the authorities like Mulla, the plea of divorce to dissolve the marital status should be from the date of filing of the written statement and not prior to that. 8. The aforesaid analysis of the facts and the provision of law thus establishes that the application u/s 125, Cr.P.C. filed by the opposite party cannot be termed as an application by the divorced Muslim woman because of non-proving of the factum of divorce on 18.1.1991 The plea of divorce being communicated to the opposite party on filing of the written statement by the petitioner, the divorce is effective from that date in the absence of any proof of a divorce prior to that and when the opposite party does not admit of any divorce at any point of time. 9. 9. In view of such factual and legal outcome, the order of maintenance is maintainable till the date of filing of the written statement even without a consent from the husband (petitioner) for adjudication of the dispute u/s 125, Cr.P.C. Thereafter, since the petitioner does not consent for a proceeding Under/Section 125, Cr.P.C., the opposite party cannot claim maintenance u/s 125, Cr.P.C. after the divorce is communicated through written statement. However, she shall be entitled to such maintenance for the 'Iddat' period. 10. For the foregoing reasons, the impugned order of maintenance granted against the petitioner is modified to the extent that the opposite party is entitled to monthly maintenance @ Rs. 500/- (Rupees five hundred) from the date of filing of the petition on 19.7.1993 till the date on which the written statement was filed by the petitioner in the Court below and, thereafter, till expiry of the 'Iddat' period and not thereafter. The order of maintenance is accordingly revised and the Criminal Revision is allowed in part. Final Result : Partly Allowed