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2005 DIGILAW 456 (RAJ)

Tofik Hussain v. Khushnuma Bano

2005-02-11

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Heard Counsel for the parties. 2. The respondent wife filed an application under Section 125, CrPC on 011.2001 in the Court of Addl. Chief Judicial Magistrate, Bandikui, claiming maintenance allowance of Rs. 2,500/-p.m. with effect from March, 2001. The petitioner husband replied the application and also moved an application that he has divorced his wife and has also sent Talaknama and a draft of Rs. 5,000/-as an amount of Mehar and Iddat to the respondent. According to him it was only after receipt of information of Talaknama that she has filed an application under Section 125, CrPC. In these circumstances, the petitioner prayed that the application filed by the respondent wife was not maintainable. 3. The learned Magistrate considering the material available before it and the law laid down by various High Courts came to the conclusion that there was no justification to reject the application filed under Section 125, CrPC and accordingly dismissed the petitioners application dated 03.01.2002, vide order dated 02.03.2002. 4. Feeling aggrieved by the aforesaid order, the petitioner preferred a revision petition before the Court of Sessions. The learned revisional Court dismissed the revision petition on the ground that the trial Court has not yet decided the application under Section 125, CrPC filed by the respondent wife and since the rights of the parties have not been finally settled by the impugned order, the order being inter-locutary one, the powers under Section 397(2), CrPC cannot be invoked. Hence, the present Misc. petition. 5. It appears from the contents of the petition and the order of the learned trial Court that petitioner had sent information of Talaq to his wife by registered post at her address at Bandikui, but it was returned with the remark that respondent wife was not residing there. According to the petitioner, if Talaq is not treated to be effective from 212.2001, the day on which he sent information of talaq, then in any case it should be taken to be effective from 03.01.2002, the day on which he filed written statement to the application and that the respondent wife can claim maintenance only to this intervening period and thereafter she is entitled to claim compensation only for the Iddat period. 6. 6. In the aforesaid circumstances the question which emerges for adjudication is whether the statement made by the husband in his written statement filed in answer to the petition under Section 125, CrPC, for maintenance by the respondent wife that he had already divorced the wife and communication thereof to the wife, by itself can be treated as effectuating talaq and/or it operates as valid talaq? 7. A similar question came up for consideration before the Honble Supreme Court in Shamim Ara vs. State of U.P. & Anr., JT 2002 (7) SC 520. In para 13 of the Judgment , their Lordships held that the correct law of talaq as ordained by the Holy Quaran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wifes family and the other from the husbands; if the attempts fail talaq may be effected. Having propounded the essential ingredients of talaq, their Lordships held that the talaq to be effective has to be pronounced. In para 16, it was held as under: "The term pronounce eamns to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate. There is no proof of talaq having taken place on 11.07.1987. 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 012.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having pronounced sometime in the past cannot be itself be treated as effectuating talaq on the date of delivery of copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 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 31.08.1988 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". 8. The present case is squarely covered by the aforesaid decision of the Apex Court. The petitioner, in the case at hand, has taken a plea in his written statement filed in answer to the petition for maintenance filed by the respondent wife that he had divorced his wife. In view of the law propounded by the Apex Court, referred to above, I am of the considered view that mere plea taken in the written statement of a divorce having been pronounced sometime in past cannot by itself be treated as effectuating talaq. The plea of divorce taken by the petitioner in his written statement cannot at all be treated as pronouncement of talaq by him on his wife on the date of filing of reply to the petition under Section 125, CrPC in the trial Court, followed by delivery of a copy thereof to the respondent wife. To make the talaq to be effective, it must be pronounced and that can be done after the petitioner husband adduces evidence and only after adducing evidence the petitioner can prove the pronouncement of talaq. 9. For the reasons aforesaid, this misc. petition is dismissed as it being devoid of merit.