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2005 DIGILAW 61 (JK)

Amina Banoo v. Ab. Majid Ganai

2005-03-22

MANSOOR AHMAD MIR

body2005
1. In terms of this revision petition, the petitioner has questioned the order dated 22ndMay, 2004 (hereinafter referred to as impugned order) passed by Munsiff, Judicial Magistrate 1st Class, Sumbal Sonawari in petition under section 488 Cr.P.C. titled MstAmina Vs. Abdul Majid Ganai, on the grounds taken in the memo of revision petition. 2. The moot point for consideration is, whether after filing petition under section 488 Cr.P.C., the Magistrate can dismiss the petition on the plea of divorce? 3. I am of the considered view that it is the duty of the 1st Class Judicial Magistrate to achieve the goal, object and purpose of grant of maintenance under section 488 Cr.P.C. The purpose, object and aim of the said proceedings is social one in order to save the claimants from vagrancy, destitution and other social evils. The 1st Class Judicial Magistrate cannot scuttle away enroute the proceedings under section 488 Cr.p.C. for grant of maintenance on the plea of divorce for the following reasons; - It is to be ascertained and held that under what circumstances the divorce deed has been executed. And Whether the petitioner has knowledge of the divorce, Whether the divorce has been pronounced in terms of the provisions of law and as per the Quranic injunctions, And the plea of divorce is to be pleaded and proved. 4. Without adjudicating these points, the Magistrate cannot dismiss the application in hot haste. My this view is fortified by the Apex Court judgment reported in AIR 2002 SC 3551 (Syed Jamaluddin v. Valian Bee). It is profitable to reproduce para-16 of the judgment herein; - "16. 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. 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 something in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The re-spondentNo.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, as 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 for 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. " While testing the case in hand, the learned Magistrate has passed the order in hot haste without, asking the parties to lead evidence in order to prove the plea of divorce and, holding that the divorce so pronounced has been pronounced in terms of the provisions of law and Quranic injunctions. Thus the order is trash one. 5. Viewed, thus the petition merits to be accepted, impugned order needs to be set aside. Accordingly, the revision petition is allowed and the Magistrate is directed to decide the petition under section 488 Cr.P.C. within three months. The parties are directed to cause appearance before the court below i.e. 1st Class Judicial Magistrate, Sumbal on 11th of April, 2005. Send down the record.