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Allahabad High Court · body

2008 DIGILAW 2249 (ALL)

MOHO. IKHLAQUE v. STATE OF U. P.

2008-11-11

ARVIND KUMAR TRIPATHI

body2008
JUDGMENT ARVIND KUMAR TRIPATHI, J. – Counter-affidavit filed today is taken on record. 2. This criminal revision has been filed with a prayer to set aside the judgment and order dated 13.3.2007 passed by learned Additional Principal Judge, Family Court, Allahabad in Case No. 353/2000 (Smt. Madina Bano v. Mohd. Ikhlaque) under section 125 Cr.P.C. P.S. Sarai Inayat, Allahabad and further to stay further proceedings of the aforesaid case. 3. Heard learned Counsel for the applicants, learned AGA and Counsel for the opposite party No. 2 and perused the record. 4. Learned Counsel for the applicant submitted that since the opposite party No. 2 Smt. Madina Bano was divorced by the applicant on 25.5.1998 before Panchayat. Notice was given to the opposite party No. 2 and the Talaqnama was also communicated through registered post. 5. He contended that since parties are Muslims and there was divorce about nine years before hence the application under section 125 Cr.P.C. for maintenance was not maintainable. He further contended that in her statement before the Courts below opposite party No. 2 admitted the receipt of the Talaqnama through registered post. Opposite Party No. 2 vehemently opposed the same on the-ground that even after the divorce it was the liability of the husband, the applicant-revisionist to maintain opposite party No.2, hence her application for maintenance was maintainable. He further contended that the applicant revisionist could hot prove the factum of the divorce, hence the application under section 125 Cr.P.C. for maintenance was maintainable. 6. In support of this argument he has relied the judgment of the Apex Court reported in Shamim Ara v. state of U.P. and another. It was held by the Apex Court in the aforesaid case that Talaqnama in order to be effective has to be pronounced. The term “pronounce” means to proclaim, to utter formally, to utter thetorically, to declare, to utter, to articulate. There is no proof of talaq having taken place on 11.7.1987. 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. There is no proof of talaq having taken place on 11.7.1987. 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. 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. In the present case Panchayat took place and talaq was pronounced before Panchayat, a copy of that was filed before the Courts below. Apart from that in her statement, the opposite party No.2 wife of the revisionist has admitted that talaqnama was sent nine years before through registered post, hence the aforesaid judgement is not applicable. This fact of the admission has not been considered by the, Courts below. Since opposite party No.2 was divorced nine years before on the date when the application under section 125 Cr.P.C. was filed, hence application filed under section 125 Cr.P.C. was not maintainable. 7. However, in view of the provision of Muslim Women (Protection of Rights on Divorce), Act, 1986 and in view of Constitution Bench of the Apex Court reported in Danial Latifi and another v. Union of India, opposite party No.2 is entitled for maintenance under the said Act of 1986. 9. In view of the aforesaid discussion the present revision is allowed, the impugned order dated 13.3.2007 passed by the learned Additional Principal Judge, Family Court in Case No. 353/2000 is set aside. No order as to cost. Revision Allowed.