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2003 DIGILAW 583 (PNJ)

Rukshana v. Mohd. Salim @ Seema

2003-04-24

K.S.GAREWAL

body2003
JUDGMENT K.S. Garewal, J. - Rukshana has filed this petition to challenge the order of learned Additional Sessions Judge, Sangrur dated September 27, 2001 whereby her claim for maintenance was accepted only till March 26, 1999 and she was denied maintenance thereafter. 2. Rukshana had originally filed an application under Section 125 Criminal Procedure Code before the learned Sub Divisional Judicial Magistrate, Malerkotla pleading that she was married to Mohd. Salim on November 13, 1994 according to Mohammedan Law. When she was pregnant her husband asked her to bring a tractor from her parents, she expressed her inability to do so and was turned out of the house. She then started living with her parents and she gave birth to a son named Mohd. Ashraf. Since Mohd. Salim had neglected and refused to maintain Rukshana and her son, the application under Section 125 Criminal Procedure Code was presented on December 17, 1998. 3. Mohd. Salim appeared and filed a reply admitting the marriage and the birth of the son but denied the other averments. It was specifically pleaded that on December 9, 1998 the husband granted divorce to his wife in the presence of Faqir Mohd. and Ramzan Mohd. He also executed a Talaqnama on that day. Rukshana was now a divorced wife and, therefore, not entitled to maintenance. The learned Magistrate was not convinced that divorce had been granted on reasonable grounds. It was also held that there had been no reconciliation efforts and the plea that divorce had taken place was not accepted. Consequently, Rs. 400/- per month was awarded as maintenance to Rukshana and Rs. 350/- per month as maintenance to her son, payable from the date of the application. 4. The order of the learned Magistrate dated February 7, 2001 was challenged before the learned Additional Sessions Judge through a revision petition wherein the Learned Additional Sessions Judge came to the conclusion that even if the husband had not been able to establish that the divorce documents had been served on the wife by registered post, the plea of divorce had been taken in the written statement dated March 26, 1999, therefore, that date should be taken as the date of valid divorce between the parties under the Muslim Law. The order of the learned Magistrate granting maintenance was partly set aside and made effective uptil March 26, 1999 and not thereafter as far as the maintenance claim of the wife was concerned. The maintenance claim of the son was upheld and the husband/fathers petition was dismissed. 5. Rukshana has challenged the order of the learned Additional Sessions Judge on the ground that even if the divorce document (Talaqnama) had not been proved, raising the plea in the written statement dated March 26, 1999 cannot have the effect of declaring that divorce had taken placer on that day making the wife disentitled to seek maintenance after that day. 6. The legal questions in this petition have now been settled by the Honble Supreme Court of India in Shamim Ara v. State of U.P. and another, 2002(4) RCR(Criminal) 636. In this case Shamim Ara married Abrar Ahmed in 1968 and the couple had four sons. On April 12, 1979 the wife filed an application under Section 125 Criminal Procedure Code on her own behalf and on behalf of two minor children. On April 3, 1993 the Presiding Judge, Family Court Allahabad, refused to grant maintenance on the ground that the wife had already been divorced by the respondent. The husband in his written reply dated December 5, 1990 denied all the averments in the application and taken a plea that he had divorced his wife on July 11, 1987. The Presiding Judge, Family Court, came to the conclusion that the wife was not entitled to any maintenance as she had been divorced. When the matter went up in revision in the High Court, the court held that the divorce alleged to have been given by the husband had not been given in the presence of the wife and had also not been communicated to her but the communication would stand completed on December 5, 1990 with the filing of the reply by the husband. 7. Therefore, the issue before the Supreme Court was whether the wife could be said to have been divorced and the said divorce communicated to her so as to become effective from December 5, 1990, the date of filing of the written statement by the husband. 7. Therefore, the issue before the Supreme Court was whether the wife could be said to have been divorced and the said divorce communicated to her so as to become effective from December 5, 1990, the date of filing of the written statement by the husband. The learned Additional Sessions Judge had in the present case relied upon Rashida Khanum and another v. S.K. Salim, 1996(1) HLR page 480 and on Abdul Mannan v. Saira Khatoon, 2000(2) HLR 511. These opinions were of a Division Bench of the Orissa High Court and a Division Bench of the Patna High Court, respectively. Both the courts had held that divorce would operate on the date of the filing of the written statement in defence to a maintenance claim. At that time Shamim Aras case (supra) had not been decided. 8. The Honble Supreme Court in Shamim Aras case (Supra) has discussed the entire gamut of law and come to the following conclusion :- "We are also of the opinion that the talaq to be effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, new Edition, P. 1030). There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. 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. The respondent No. 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. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as relevant and of any value." (Emphasis supplied) 9. The learned Additional Sessions Judge was clearly in error in taking the view that divorce became final on filing the written statement. Neither was the marriage dissolved on the filing of the written statement on March 26, 1999 and nor did the liability of the husband to pay maintenance come to an end on that day. Mohd. Salims liability to pay maintenance shall continue until the obligation came to an end in accordance with law. This petition is accepted, the order of the learned Additional Sessions Judge is hereby set aside and the order of the learned Sub Divisional Judicial Magistrate, Malekotla is restored. Petition allowed.