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Allahabad High Court · body

2010 DIGILAW 3028 (ALL)

Shahana v. State of U. P. and another

2010-09-29

ASHOK SRIVASTAVA

body2010
Ashok Shrivastava, J.: - List has been revised. None is present either from the side of revisionist or from the side of opposite party no. 2. Learned A.G.A. is present. 2. An application under Section 125 Cr.P.C. was moved before the learned Judicial Magistrate, Hapur (Ghaziabad) which was registered there as Case No. 192 of 2000. It was moved by the revisionist for maintenance against her husband for herself and her minor son. During the pendency of the petition, opposite party no. 2, Fayyaz, moved an application before the learned Magistrate on 17.8.2002 informing the court that he had already divorced the petitioner and had also informed his decision to her through registered post as well as by sending a telegram to her. In the said application, the opposite party no. 2 had requested the court that the proceeding should be truncated and the petition under Section 125 Cr.P.C. should be dismissed. The said application was contested by the revisionist. She had specifically said in her objection that she has not been divorced by opposite party no. 2 and, therefore, the petition under Section 125 Cr.P.C. cannot be dismissed at that stage. 3. The learned Magistrate heard the parties and on 7.9.2002 he passed an order in which he held that the factum of divorce was disputed as the husband was alleging that he had divorced his wife whereas the wife was denying this fact and she was also denying that she had received any such communication from her husband. In his order dated 7.9.2002, the learned Magistrate kept that application pending as he was of the opinion that the said application should be disposed of alongwith the main peittion. Feeling aggrieved by the order dated 7.9.2002, the opposite party no. 2 preferred a revision before the learned Addl. Sessions Judge, Hapur (Ghaziabad). After hearing both the parties, the learned Addl. Sessions Judge allowed the revision and set aside the order passed by the learned Magistrate and held that the petition under Section 125 Cr.P.C. stood dismissed as far as it related to the revisionist but it was to continue as far as her son was concerned. Feeling aggrieved by this judgment and order dated 22.8.2003 passed in Crl. Revision No. 460 of 2002, the present revision has been filed. 4. Heard the learned A.G.A. and perused the records. 5. Feeling aggrieved by this judgment and order dated 22.8.2003 passed in Crl. Revision No. 460 of 2002, the present revision has been filed. 4. Heard the learned A.G.A. and perused the records. 5. Learned A.G.A. has opposed the revision and has said that the revisional order passed by the learned Addl. Sessions Judge is legal and sustainable in the eyes of law. 6. From the perusal of the order passed by the learned Addl. Sessions Judge it is evident that opposite party no. 2 had taken the plea of divorce in his written statement also filed by him in respect of petition under Section 125 Cr.P.C. It is also evident that the plea was there that he had informed the revisionist by means of a telegram stating therein that he had divorced her. Now the relevant fact, as emerged from the records, is that the opposite party no. 2 had taken the plea of divorce in his written statement and thereafter he moved again an application on 17.8.2002 before the learned Magistrate, reference whereof has been given above. Since the plea of divorce has already been taken in the written statement, the application dated 17.8.2002 was totally extraneous and it was not required to be moved at all but it was moved and entertained not at the level of the Magistrate but also at the level of the learned Addl. Sessions Judge. 7. In (2002) 7 Supreme Court Cases 518, Shamim Ara Vs. State of U.P. and another, the Supreme Court has said that plea of Talaq taken by husband in his written statement should be proved, if the same is challenged by the wife. If the particulars of the alleged Talaq are not pleaded, nor the circumstances under which and the persons, if any, in whose presence Talaq was pronounced have been stated, such deficiency cannot be rectified. It is the duty of the husband that if the factum of Talaq is disputed by the wife, the same is to be proved to the satisfaction of the court that Talaq has taken place disolving the marriage between the parties. The Apex Court has further said 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. The Apex Court has further said 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. If there is no proof of Talaq, the factum of Talaq cannot be presumed and on the basis of such statement of the husband, the wife cannot be denied the benefit of Section 125 Cr.P.C. 8. In the instant case, the evidence before the Magistrate had not started at all. Therefore, proving the factum of Talaq cannot arise. The Addl. Sessions Judge has given all together and illegal finding basing his decision on mere recital of factum of divorce by the husband in his written statement or in his application dated 17.8.2002. Such findings cannot be permitted to sustain. In my opinion, the finding given by the learned Addl. Sessions Judge is bad in the eyes of law and it cannot be sustained as far as it relates to the revisionist. 9. As a result, the revision succeeds and is allowed. The order impugned dated 22.8.2003 passed by learned Addl. Sessions Judge, Hapur (Ghaziabad) in Crl. Revision No. 460 of 2002, is hereby quashed and set aside as far it relates to the revisionist. The matter is sent back to the court of learned Judicial Magistrate, Hapur who is directed to proceed with the case under Section 125 Cr.P.C. after issuing notice to the parties in accordance with law. The learned Magistrate is further directed to go through the case of Shamim Ara (supra) and understand its spirit before deciding the petition. Learned Magistrate is also directed to dispose of the matter within three months from the date he receives a copy of this order as the matter is old.