Nagendra Pd. Singh, J.@mdashThis application in revision is directed against an order dated the 19th July, 1972 passed u/s 488 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) directing the petitioner to pay Rs. 60/- per month as maintenance to the opposite party with effect from the date of the said order. It appears that the opposite party filed an application u/s 488 of the Code before the Subdivisional Magistrate, Motihari on the 28th August, 1970, claiming that she was married to the petitioner nearly 35 years ago and since then she has been living with him as his wife. It was further alleged that the petitioner having sufficient means, had neglected to maintain her and as such he should be directed to pay her a maintenance of Rs. 425/- per month since the date of filing of the said application. The learned Subdivisional Magistrate issued show cause notice to the petitioner. In pursuance of the said notice the petitioner filed his show cause on the 7th November, 1970. In the said show cause it was alleged on behalf of the petitioner that the opposite party was not entitled for maintenance, because the petitioner had already divorced her. In paragraph 9 of the said show cause it was said that the petitioner tried his best to keep the opposite party at his place, but due to manoeuvring of the enemies of the petitioner, she refused to live with the petitioner and the petitioner had no alternative "but to divorce her and the petitioner divorced her on the 24th August, 1970 and since then he severed all connections with the petitioner and the relationship between husband and wife ceased to exist." During the course of the hearing of the said application, witnesses were examined on behalf of the opposite party as well as on behalf of the petitioner. The petitioner was examined as D. W. 5, who during the course of his evidence again asserted that he had divorced the opposite party who was once his wife. The learned Magistrate on consideration of the evidence on record, came to the conclusion that the petitioner, had failed to prove that he had divorced the opposite party on the 24th August, 1970, as asserted by him and on that finding he came to the conclusion that the opposite party continued to be the wife of the petitioner and as such entitled to the maintenance and, accordingly, he passed an order as already stated above, directing the petitioner to pay her maintenance of Rs. 60/- per month since the date of the order.
2. The Learned Counsel appearing for the petitioner has submitted that the learned Magistrate should have held that even if it was not proved that the petitioner had divorced the opposite party on the 24th August, 1970, the learned Magistrate should have held that the opposite party will be deemed to have been divorced since the 7th November, 1970, the day the show cause was filed on behalf of the petitioner asserting that he had divorced the opposite party. Section 488 of the Code contemplates that the applicant for maintenance must be the wife of the person from whom the maintenance is claimed and she must continue as such to be entitled for such a maintenance. Accordingly, if it is held that the opposite party ceased to be wife of the petitioner on any date prior to the passing of the impugned order, then the learned Magistrate was not justified in directing the petitioner to pay the maintenance to the opposite party. As such the crucial question for decision in this case is as to whether the opposite party was the wife of the petitioner on the 19th July, 1972 when the impugned order was passed.
3. The parties in the case are governed by Mohammedan Law, and to find out whether there can be a divorce in the circumstances stated above, one has to look to the principles of the said Mohammedan Law.
4. The law of divorce under the Mohammedan Law is very favourable to the husband and this aspect has been noticed in several books as well as in the judicial pronouncements, because the Mohammedan husband can divorce his wife whenever he desires without assigning any cause and it is known as Talaque. The Mulla''s Principles of Mohammedan Law 17th Edition edited by Sri M. Hidayatullah, the then Chief Justice of India, have also dealt this aspect of the matter under Chapter XVI. From time to time questions have been raised in different courts of India as to whether the provision of Section 488 of the Code is subject to the Mohammedan Law on divorce or it is a special provision not to be governed by the personal law of the parties concerned. It was held in those cases that an order u/s 488 of the Code is subject to the Mohammedan Law, in the sense that a wife who has been held to be entitled for maintenance u/s 488 of the Code, can cease to enjoy the said privilege if afterwards she is divorced by her husband. In such cases the order u/s 488 of the Code ceases to operate after such divorce. In this connection reference can be made to the cases of (1) Ahmad Kasim Vs. Khatun Bibi (I.L.R. 1932 (59) Cal 833) and (2) Mohammad Shamsuddin Vs. Noor Jehan Begum (I.L.R. 1955 Hyd 118 ). Even in the aforesaid Mulla''s Principles of Mohammedan law 17th Edition this aspect of the matter has been considered in Chapter XVI, and it has been pointed out that if the applicant ceases to be the wife due to divorce, order u/s 488 of the Code will cease to operate.
5. The next question is as to whether the finding of the learned Magistrate that the petitioner had failed to prove the divorce as claimed by him with effect from the 24th August, 1970, can be interfered with by this Court for the purpose of holding that the opposite party is not entitled to maintenance under the provision of Section 488 of the Code. Learned Counsel appearing for the petitioner in this connection has submitted that under the Mohammedan Law the divorce can take place even by statement made to that effect in the written statement or by service of notice during the pendency of the proceeding u/s 488 of the Code, Learned Counsel further submitted that in view of the show cause filed In the instant case by the petitioner, It will be deemed that he has divorced the opposite party at least with effect from the 7th November, 1970, the day the show cause was filed. On behalf of the petitioner reliance has been placed on a decision of the Bombay High Court in the case of (3)
Applying the ratio of that case to the facts of this case in my opinion, it must be held that although the husband failed to prove the divorce which, he alleged, had taken place 30 years ago, he did divorce the wife as from the date on which be filed the written statement, namely, 6th April, 1959
In that very Judgment after making reference to the Syed Ameer Ali''s Mohammedan Law, 5th Edition, it was observed as follows :�
These passages make it clear that although a Mohammedan may fail to prove the allegation that he had divorced his wife some years ago, nevertheless, the statement made by him to the effect that he had so divorced his wife, even if it be false, would operate as an acknowledgment of the divorce by him or at any rate as a declaration of divorce as from the date on which the statement was made.
6. In commentary to Section 279 of the aforesaid Mulla''s Principles of Mohammedan Law, it has been said that; in a proceeding initiated by a Mohammedan wife u/s 488 of the Code if a husband files a written statement to the effect that he has already divorced his wife and even if this statement is not proved, such declaration will operate as divorce at least from the date of the written statement. In such cases the wife is entitled to only maintenance upto that date. Similar is the view of a Bench decision of the Allahabad High Court in the case of (4)
