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2006 DIGILAW 1364 (BOM)

Kausarbi w/o. Kasim Mulla v. State of Maharashtra

2006-08-30

J.H.BHATIA

body2006
JUDGMENT:- Heard learned counsel for Petitioner and Respondent No.1. 2. It may be noted that Mr. Kishor Ghute Patil, was advocate for respondent No.2 husband. However, on 26-7-2006, he had submitted a note to the Registrar of this Court informing that. as per the directions given by this Court to deposit the arrears of maintenance amount, he had communicated the order to Respondent No.2 but he had not complied with the directions and thereafter, by notice dated 12-9-2003, he had informed Respondent No.2 that he was withdrawing from this petition and he had also returned the brief to Respondent No.2 with a request that he should make arrangement for conducting the case. Notice was served on him. However, inspite of that Respondent No.2 did not make any arrangement for appearance on his behalf. As such none is present for Respondent No.2. 3. Admittedly, the petitioner and Respondent No.2 were married some times in 1984 and out of this wedlock, they have also a son namely Arif. The petitioner and her minor son had filed Criminal Misc. Application No.1281 1986 on 16/12/1986 U/s.125, Cr.P.C. claiming maintenance against Respondent No.2. In that application Respondent No.2 filed a written statement/say on 10-7-1987 pleading that he had already given divorce tot he applicant on 9-12-1986 in writing and communication the said writing to her by Registered Post A.D. on the same day. This fact was denied by the applicant. After hearing the parties, the learned Magistrate came to the conclusion that communication of divorce on 9-12-1986 was proved because the applicant had refused to accept the envelope containing the notice about divorce. The learned Magistrate relying upon authority of this High Court in Mahaboobkhan Faizullakhan Vs. Parveenbanu and another, 1988 Maharashtra Law Journal 781, came to the conclusion that on coming into force of Muslim Women (Protection of Rights on Divorce) Act, 1986, provisions of Section 125, Cr.P.C. stand repealed in view of Section 7 of the said Act and as before filing of the application U/s.125, Cr.P.C. on 16-12-1986, the husband had already given divorce to the wife, she could not claim maintenance U/s.125, Cr.P.C. but she could claim maintenance for Iddat period under the said Act. With these observations the application came to be rejected. That order was challenged by the present applicant and her minor son in Criminal Revision Application No.24/1990. With these observations the application came to be rejected. That order was challenged by the present applicant and her minor son in Criminal Revision Application No.24/1990. The learned Additional Sessions Judge by its judgment dated 25-1-1991 partly allowed the Revision Application and granted maintenance tot he child at the rate of Rs.100/ - p.m. However, holding that the applicant was given divorce at least with effect from 10-71987 when written statement/say taking plea of divorce was filed by husband and copy of which was served on her, the learned Addl. Sessions Judge directed the husband to pay maintenance to the applicant at the rate of Rs.200/- from the date of application till 10-71987. Being not satisfied the wife filed the present Writ Petition challenging the observations and order passed by the Additional Sessions Judge, Osmanabad. According to her, Respondent No.2 had not given divorce to her. Plea taken by him in the written statement cannot be taken as divorce and as he had failed to prove that the divorce was actually given, the marriage still subsist and she is entitled to get maintenance U/s.125, Cr.P.C. 4. Perused the relevant record. 5. Taking into consideration the evidence on record the learned Additional Sessions Judge noted that Respondent No.2 had sent a notice giving divorce tot he wife by registered Post A.D. but that envelope was returned by the postal authority on the ground that the addressee had refused to accept it. According to the learned Sessions Judge, the wife was not expected to know the contents of the envelope as according to the husband he had given divorce on 9-12-1986 by that notice itself. There was no plea nor there was any evidence that the divorce was given in her presence or in presence of any witnesses or that the fact of divorce was communicated to her orally. In view of this, learned Additional Sessions Judge held that merely by sending the notice the wife could not be said to have been given divorce. Mrs. Ansari, learned counsel for the applicant, has pointed out that the said notice, which was allegedly sent by Registered Post, was actually sent by one advocate on behalf of Respondent No.2, informing that her husband had given divorce. In was the legal notice given by the advocate. It was not a divorce deed sent to her. Mrs. Ansari, learned counsel for the applicant, has pointed out that the said notice, which was allegedly sent by Registered Post, was actually sent by one advocate on behalf of Respondent No.2, informing that her husband had given divorce. In was the legal notice given by the advocate. It was not a divorce deed sent to her. In view of this also it could be held that by sending such a notice through advocate, divorce could not be given under the Muslim Law. Anyhow fact remains that the respondent No.2 filed his say/written statement on 10-71987 and on the same day copy of that written statement was served on the applicant. In that written statement he had taken a plea that he had given divorce. The learned Additional Sessions Judge held that the day on which that written statement was served on the wife. it must be held that the husband had given divorce on that day and it was also communicated to her. Holding this the learned Additional Sessions Judge came to the conclusion that she must be deemed to have been given divorce with effect from 10-7-1987 and from that date she was treated as divorced woman. The record also reveals that in his evidence the respondent No.2 has deposed on 13-12-1989 in following words: "I am giving oral divorce to applicant No.2 in the Court today." In view of this fact a question arises whether the applicant should be deemed to have been given divorce effect 10-7-1987 when the written statement was filed taking that plea of divorce or she should be deemed to have been given divorce on 13-12-1989 when he made that statement on oath before the Court or both cannot be deemed to be valid divorce under the Law. 6. About the plea taken in the written statement about divorce, we have authority of Supreme Court in Shamim Ara Vs. State of U.P. and another, 2003 ALL MR (Cri) 344 (S.C.) as well as Full Bench authority of this Court in Dagdu Chotu Pathan Vs. Rahimbi Dagdu . Pathan and others, 2002(3) Maharashtra Law Journal 602 : [2002 ALL MR (Cri) 1230 (F.B.) : 2002(3) ALL MR 265 (F.B.)]. 7. State of U.P. and another, 2003 ALL MR (Cri) 344 (S.C.) as well as Full Bench authority of this Court in Dagdu Chotu Pathan Vs. Rahimbi Dagdu . Pathan and others, 2002(3) Maharashtra Law Journal 602 : [2002 ALL MR (Cri) 1230 (F.B.) : 2002(3) ALL MR 265 (F.B.)]. 7. In Dagdu Chotu [2002 ALL MR (Cri) 1230 (F.B.) : 2002(3) ALL MR 265 (F.B.)]" (supra) Full Bench of this Court held that for a valid Talaq by husband under the Muslim Law, thee must be reasonable cause and it should be preceded by attempts at reconciliation between husband and wife by arbitrators by both the sides. The Full Bench observed as follows in para 22 : "22. A divorce by the husband is Talaq and it has its oral as well as written forms. The oral form of Talaq can be effected in three modes viz. Talaq-e-Ahsan, Talaq-eHasan. Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure. Firstly, he has to make it known to his wife about any of these reasons and she must be given time to change her behaviour. It by his direct conversation/persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Firstly, he has to make it known to his wife about any of these reasons and she must be given time to change her behaviour. It by his direct conversation/persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Two arbitrators, one from wife and one from the husband, are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and in spite of these efforts having been made if the discord still persists to an irreparable level there is 0 alternative but to separate and it is at this stage that the husband has the right to give Talaq to his wife. The stage of conciliation with the intervention of the arbiters is a condition precedent for effecting Talaq either in Ahsan from or Hasan form. It will be seen that in all disputes between the husband and the wife the judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconciliate the parties to each other failing which divorce is to be effected. Therefore, though it is the husband, who pronounces the divorce, he is as much bound by the decision of the judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two judges and their decision is binding. Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wife's family and the other from the husband's. If the attempts failed, Talaq may be effected. In other words, an attempt at reconciliation by two relations; one each of the parties, is an essential condition precedent to Talaq." Having considered the legal position, the Full Bench held that it would not be enough for the husband to invoke his right of giving Talaq under Talaq-e-Ahsan or Talaq-e-Hasan before the Court by way of written statement or while in the witness box or under oath. Thus, the Full Bench ruled out validity of Talaq allegedly given by simply taking plea of divorce in the written statement or by making a statement on oath before the Court, unless it is proved that some attempts at reconciliation is made and after failure reconciliation attempts he had actually given divorce in the prescribed modes. 8. In Shamim Ara (supra) the Supreme Court dealt with this question in detail after making survey of large number of conflicting authorities from different High Courts. Their Lordships observed as follows in para 16 : "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. There is no proof of talaq having taken place is 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 c1earin 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 effecting 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. 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 t e written statement in the Court followed delivery of a copy thereof to the wife. 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 t e written statement in the Court followed 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." 9. In view of the Full Bench authority of this Court in Dagdu Pathan [2002 ALL MR (Cri) 1230 (F.B.) : 2002(3) ALL MR 265 (F.B.)] (supra) and the Supreme Court authority in Shamim Ara, it is now well settled that merely on the basis of the plea in the written statement that on earlier date the husband and give divorce, it cannot be held that at least from the date of filing such written statement taking such plea of divorce, the wife should be deemed to have been given divorce under Muslim Law. In view of this legal position, it cannot be held that with effect from 10-7-1987, when respondent No.2 filed written statement taking plea of divorce, he should be deemed to have given divorce to the wife. Similarly in view of the Full Bench authority referred above merely because he had deposed on oath before the Court that he was giving oral divorce to the applicant No.2 in the Court, it cannot be held that Talaq was given on that date. In view of this legal position, it must be held that Respondent No.2 failed to prove that he had given divorce to the applicant. As divorce is not proved it must be held that the marriage of the applicant and Respondent No.2 was still subsisting when the learned Additional Session Judge, Osmanabad passed the order. In view of this legal position, the applicant should have been granted maintenance as a wife U/s.125, Cr.P.C. 10. For the aforesaid reasons, writ petition deserves to be allowed and the order passed by the learned Additional Sessions Judge to the extent of the present applicant needs to be modified. 11. The Writ Petition is allowed. In view of this legal position, the applicant should have been granted maintenance as a wife U/s.125, Cr.P.C. 10. For the aforesaid reasons, writ petition deserves to be allowed and the order passed by the learned Additional Sessions Judge to the extent of the present applicant needs to be modified. 11. The Writ Petition is allowed. The impugned order passed by the Additional Sessions Judge, Osmanabad is hereby modified and it is directed that Respondent No.2 husband shall pay maintenance at the rate of Rs.200/p.m. to the applicant from the date of her application U/s.125, Cr.P.C. Rule made absolute accordingly. Petition allowed.