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2007 DIGILAW 345 (JHR)

Gama Nisha And Munna Ansari v. Chottu Mian

2007-04-20

AMARESHWAR SAHAY

body2007
JUDGMENT Amareshwar Sahay, J. 1. This revision application arises against the order of the Principal Judge, Family Court, Dhanbad on 17/07/1998, in Cr. Misc. No. 4 of 1997, whereby the Principal Judge, Family Court, allowed the application filed by the Opposite Party Chottu Mian, i.e. the husband of petitioner No. 1 and father of petitioner No. 2 Munna Ansari under Section 127 Cr. P.C. 2. The facts in short are that the petitioner, who is the wife of the opposite party Chottu Mian (herein after referred to as the wife for the sake of convenience), filed an application before the Principal Judge, Family Court, Dhanbad, under Section 125 Cr.P.C. against her husband Chottu Mian for grant of maintenance for herself and for her minor son Munna Ansari, which was registered as M.P. Case No. 1/1995. The Principal Judge, Family Court by his order dated 18/05/1995 allowed the said application of the wife and directed the husband to pay maintenance @ Rs. 400/- P.M. for the wife and @ Rs. 300/- P.M. for the minor son till he attains the age of majority. Since the husband had not appeared and, therefore, the said order was passed exparte. 3. Subsequently, the husband Chottu Mian filed an application before the Principal Judge, Family Court purported to be an application under Section 127 Cr.P.C. for alteration of the maintenance amount. He took the plea before the Principal Judge, Family Court that though he was married to Gama Nisha (the petitioner herein) about 35 years ago and Munna Ansari was born out of their wedlock but the wife Gama Nisha forcibly obtained divorce from him on 25/09/1989 in presence of the witnesses and, thereafter, left the petitioner and subsequently, remarried with one other person and, therefore, Gama Nisha, i.e. the petitioner being a Muslim divorcee was not entitled to claim maintenance from her erstwhile husband Chottu Mian as per Muslim Law. He also took a plea that now the son Munna Ansari has already become major and was working as a Tailor Master therefore, he was also not entitled for maintenance. 4. He also took a plea that now the son Munna Ansari has already become major and was working as a Tailor Master therefore, he was also not entitled for maintenance. 4. From the impugned order of the Principal Judge, Family Court, it appears that he held that in a proceeding under Section 125 Cr.P.C. between a Muslim husband and his wife for maintenance, if the husband states and makes out a case in his pleadings that he has already divorced his wife and even if the court comes to the finding that the plea of divorce was not proved, even then such a statement/plea taken in the pleading by the husband would itself operate as an expression or declaration of divorce by Talaq and divorce would be held to take effect; from the date on which such pleading was filed by the husband. He also referred the decision of Patna High Court reported in 1990 B.B.C.J. 505 in this regard. The Principal Judge, accordingly, held that the petitioner husband had already divorced his wife Gama Nisha, which became effective w.e.f. 21/03/1996, i.e. the date on which he filed application under Section 127 Cr.P.C. in which it was stated that he has already divorced his wife. Consequently, the Principal Judge, allowed the application filed by the husband and set aside the order dated 18/05/1995 allowing maintenance in favour of the wife and the son. 5. The Supreme Court in the case of Shamim Ara v. State of U.P. and Anr. reported in AIR 2002 SC 3551 has held that under the Muslim Law plea of previous divorce taken by husband in written statement in proceedings initiated by wife for maintenance cannot at all be treated as pronouncement of "Talaq" by husband on wife on the date of filing of written statement in Court. It neither stands dissolved the marriage between the parties on the date of filing of written statement nor does the liability of the husband to pay maintenance comes to an end on that day. It neither stands dissolved the marriage between the parties on the date of filing of written statement nor does the liability of the husband to pay maintenance comes to an end on that day. It was further held in the said decision that under the Muslim Law as ordained by Holy Quaran is: (i) That "Talaq" must be for a reasonable cause; and (ii) That must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband and then if the attempt fails, "Talaq" may be effected. 6. In view of the specific decision of the Supreme Court on this point as noticed about, the finding of the Principal Judge, Family Court, that even if the Muslim husband could not prove the factum of Talaq but such his plea made in his pleading/written statement then such plea/statement taken in the pleading by the husband would itself operate as an expression or declaration would be effective from the date of such pleading was filed by the husband cannot be sustained in law. 7. The factum of Talaq is a question of fact, which has to be proved by the evidence. From the impugned order of the Principal Judge, it appeals that the husband could not prove the fact that he had already divorced his wife, i.e. the petitioner Gama Nisha. Until and unless the necessary requirements for proving the Talaq is proved, the Talaq cannot be made effective. This view further finds support by the decision of Madhya Pradesh High Court in the case of Farida Bano v. Kamruddin reported in II (2006) DMC 698. Therefore, the impugned order of the learned Principal Judge, directly comes under the teeth of the judgment of the Supreme Court noticed above. 8. Accordingly, in view of my discussions and finding above, the impugned order dated 17/07/1998 passed in Cr. Misc. No. 4/1997 is held to be unsustainable. Consequently, this application is allowed and the impugned order is hereby set aside. The order passed by the Principal Judge, Family Court, dated 18/05/1995 in M.P. Case No. 1/1995 is hereby restored.