A.K. Sikri, J.@mdashPetitioners No. 1 and 2 claiming themselves to be the wife and daughter, respectively, of respondent filed two applications for maintenance. The respondent contested these applications primarily on the ground that they were not maintainable inasmuch as the respondent had divorced the petitioner No. 1 much prior to filing of these applications. Therefore, instead of moving u/s 125 Cr.P.C., the remedy of the petitioner No. 1 was to take recourse to the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called Act). Learned Metropolitan Magistrate, vide common judgment dated 13.5.2000, rejected the contention of the respondent and fixed the maintenance of Rs. 275/- per month to petitioner No. 1 with effect from 1.9.1994 to 30.4.1995 and @ Rs. 400/- per month with effect from 1.5.1998 and awarded maintenance to the petitioner No. 2 @ Rs. 225/- with effect from 1.4.1995 to 30.4.1995 and Rs. 400/- with effect from 1.5.1998. However, in the revision petitions, filed by the respondent against the said order, learned Additional Sessions Judge reversed the order of the Trial Court, accepted the contention and consequently allowed the revision petitions of the respondent herein. Feeling aggrieved by the said judgment dated 31.5.2001 of the learned ASJ, present petition is filed u/s 482 of the Cr.P.C. The question to be decided remains the same. The applicability of the Act, 1986, however, depends on the determination of the dispute between the parties, namely, whether there was divorce between the respondent and petitioner No. 1. Therefore, in order to decide this question, we will have first to go through the factual matrix.
2. Petitioner No. 1 claims to have married the respondent some time in the year 1993, according to the Muslim rites and ceremonies in Delhi. She claimed that her parents had given dowry articles including jewellery during her marriage but after few months, the attitude of the respondent became insulting and cruel towards her. He started demanding more dowry and on refusal, he gave merciless beatings to the petitioner No. 1. Same was the attitude of the relatives of the respondent who used to abuse and taunt her. Various allegations of cruelty and harassment on account of demand of dowry are stated. Ultimately, on 14.4.1994, the petitioner No. 1 was turned out of matrimonial home, when she was pregnant about four months, with a threat to return only with dowry or cash or she would be killed. On these allegations, she filed an application u/s 125 Cr.P.C. for maintenance before the learned M.M. on 9.8.1994. Thereafter, petitioner No. 2 daughter of petitioner No. 1 who was born on 15.1.1995 also filed similar application through her mother and natural guardian, namely, petitioner No. 1 on 30.3.1995.
3. In the reply, filed by the respondent he took preliminary objections stating that he had obtained divorce and ''Fatwah'' by Mufti in this connection. He also took objection to the territorial jurisdiction on the ground that petitioner was residing at Ghaziabad. Allegations of demand of dowry and harassment were also denied. The learned Trial Court held that since respondent was residing in Delhi and he also failed to prove that petitioner was putting up at Ghaziabad, Delhi Court had the territorial jurisdiction. It further held that respondent had failed to prove the alleged divorce dated 22.5.1994. Respondent had denied paternity of petitioner No. 2. But according to the learned Trial Court, since he did not deny that he was admittedly related to petitioner No. 1 as husband on the date the child might have been conceived and had access to her, presumption u/s 112 of the Indian Evidence Act would arise and petitioner No. 2 would be legitimate child of the respondent.
4. In the judgment dated 31.5.2001 passed by the Revisional Court, plea of the respondent herein was accepted. Perusal of this judgment would reveal that the learned ASJ did not overturn the finding of fact recorded by the learned Trial Court to the effect that respondent had not been able to prove the factum of granting of divorce to the petitioner No. 1. The learned ASJ proceeded on the basis that the respondent had alleged in his written statement that he had divorced his wife on 22.5.1994 and mentioning of this was sufficient to disentitle the petitioner No. 1 from moving the application u/s 125 Cr.P.C. and in support of this proposition, he relied upon the judgment of Madhya Pradesh High Court in case of Khalliuddin v. Smt. Sarbar Bai I 1996 CCR 326 , wherein the High Court had opined that such statement in the written statement operated as divorce from the date of statement inasmuch as statement itself amounts to expression of divorce from the husband at that very moment. He further opined that judgment of this
5. I have heard the learned Counsel for both the parties at length, who supported their arguments with case law, which would be referred to while discussing their arguments. At the outset, I do not agree with the approach of the learned ASJ in holding that application u/s 125 Cr.P.C. filed by the petitioner No. 1 is not maintainable only on the ground that in the written statement, respondent had taken the plea that he had divorced petitioner No. 1 and accepted the said plea as gospel truth without any valid proof thereof. As mentioned above, for arriving at this conclusion, the learned ASJ relied upon the judgment of Madhya Pradesh High Court in case of Khalliuddin v. Smt. Sarbar Bai (supra), wherein the Court had held as under:
The first question is, what is the effect in law of the husband making declaration in writing that he has already divorced his wife even when the Magistrate was of the view that there was no conclusive proof of divorce and the matter is still to be decided finally. The law on the point is well-settled and it is that such a statement operate as a divorce and from the date of the statement inasmuch as the statement for itself amounts to an expression of divorce by the husband from that very moment. In the instant case, Therefore, it has to be presumed that the respondent-wife has been divorced by the petitioner-husband on 5.11.1992 when the latter made a statement in writing before the learned Magistrate.
6. I am not persuaded by the aforesaid reasoning given by Madhya Pradesh High Court and record my disagreement thereto. Mere statement of the husband taken in the written statement that he had divorced his wife on a particular day would not suffice. If this is accepted, it would be prone to misuse. Law on divorce by Muslim husband to his wife is well settled. There are certain prerequisites, which are to be fulfillled, before a Muslim husband is able to divorce his wife. Divorce cannot be said to have taken place unless following prerequisites are proved:
1. Divorce must be for a reasonable cause that is mandatory of Holy Quran. Therefore, when a dispute arises, the husband has to give evidence showing what was the cause which compelled him to divorce his wife.
2. He has to prove that there was proclamation of Talaq thrice in presence of witnesses or in a letter (as pleaded in the instant case). Till it is proved, Talaq is not valid. (Referred to
3. There has to be proof of payment of Meher (dower) amount or observance of period of iddat.
4. The husband has also to prove that there was attempt for settlement/conciliation prior to the divorce.
7. Unless aforesaid ingredients are proved, it cannot be said that there was a valid divorce. Therefore, merely because averment is made by the husband in the written statement, that by itself is not sufficient to oust the application u/s 125 Cr.P.C. preferred by the wife. I may point out at this stage that this issue specifically came up for hearing before the Hon''ble Supreme Court in the case of Shamim Ara v. State of U.P. and another AIR 2002 SC 3551 and the Apex Court held that a 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 date of filing of written statement in Court followed by delivery of copy thereof to wife.
8. Various judgments of the High Court, where contrary view was taken, were overruled by the Hon''ble Supreme Court. The Apex Court referred to the judgment of Kerala and Gauhati High Courts extensively. The view taken by Gauhati High Court was discussed in para 13 and the Court agreed with the same as would be clear from the following discussion in the said judgment:
13. There is yet another illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375. In Jiauddin Ahmed''s case, a plea of previous divorce, i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim Law� The learned Judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high decree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. (Para 6). Quoting in the judgment several Holy Quaranic verses and from commentaries thereon by well-recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that �the whimsical and capricious divorce by the husband is good in law, though bad in theology� and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters -- One from the wife''s family and the other from the husband''s; if the attempts fail, talaq may be effected (Para 13). In Rukia Khatun''s case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quran, is: (i) that ''talaq must be a for a reasonable cause; and (ii) that it 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 from his. If their attempts fail, ''talaq'' may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay view which, in their opinion, did not lay down the correct law.
14. We are in respectful agreement with the above said observations made by the learned Judges of High Courts. We must note that the observations were made 20- 30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends. What this Court observed in
The meaning of meanings if derived from values IN a given society and its legal system. Article 15(3) has compelling compassionate relevance in the context of Section 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in Article 39 is part of social and economic justice, specificated in Article 38, fulfilment of which is fundamental to the governance of the country (Article 37). From this cosign of vantage we must view the printed text of the particular Code. (para 12)
Law is dynamic and its meaning cannot be pedantic but purposeful.(para 12).
9. As to in what manner Talaq can be given, by the husband, is mentioned in para 16 of the judgment which reads as under:
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 (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 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 clear in 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 material 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 the written statement in the Court followed for delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1998, 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.
10. In view of the aforesaid dicta of the Apex Court, the judgment of learned ASJ is to be necessarily set aside on this point. Conscious of this legal position, which prevails, learned Counsel for the respondent tried to argue that there was sufficient evidence to show that respondent had taken talaq from the petitioner No. 1 and a Fatwah was obtained. Though, learned Metropolitan Magistrate has given a categorical finding that respondent has not been able to prove this plea but learned ASJ has not addressed this issue at all as he was relying on the mere averment made in the written statement. In order to put an end to prolonged litigation, I summoned the trial court record, the perusal whereof clearly shows that there is no such proof. Though the respondent has filed alleged copy of Fatwah, it is only a photocopy. Furthermore, this document is not proved by leading any evidence. In fact, it would be relevant to point out at this stage that the respondent has tried to take up the plea that he was suffering from schizophrenia and one Dr. Ravi S. Pandey was also examined for this purpose. But this plea failed before the courts below and was not taken up before me.
11. In case of Salim Basha v. Mumtaz Begam 1991 (1) RCR (Criminal) 392, which was also a case decided by Madras High Court u/s 125 Cr.P.C., the Madras High Court opined that talaq was not valid as no evidence was given to the effect that there was a pre-divorce conference for settlement by two mediators, one chosen by wife and the other by husband which was mandatory of Muslim Law and, Therefore, the wife was entitled to maintenance.
12. In view of the aforesaid discussion, it is clear that respondent could not prove that he had divorced his wife and, Therefore, bar of Act, 1986 was not applicable in entertaining the application of the petitioner No. 1 u/s 125 Cr.P.C.
13. In so far as, the application of petitioner No. 2 for maintenance is concerned, it does not even pose any problem. In fact, learned ASJ has not even considered the issue of right of a child to get maintenance, even if Muslim father has divorced his wife. Law on this aspect also stands finally determined by the Apex Court in
14. After quoting Section 3 of the Act, 1986, the Court interpreted the said provision in the context of Section 125 Cr.P.C. in the following manner:
From a plain reading of the above Section it is manifest that it deals with �Mahr� or other properties of a Muslim woman to be given to her at the time of divorce. It lays down that a reasonable and fair provision has to be made for payment of maintenance to her during the period of Iddat by her former husband. Clause (b) of Section 3(1) (supra) provides for grant of additional maintenance to her for the fosterage period of two years from the date of birth of the child of marriage for maintaining that child during the fosterage. Maintenance for the prescribed period referred to in Clause (b) of Section 3(1) is granted on the claim of the divorced mother on her own behalf for maintaining the infant/infants for a period of two years from the date of the birth of the child concerned who is/are living with her and presumably is aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infant/infants up to a period of two years. It has nothing to do with the right of the child/children to claim maintenance u/s 125 Cr.P.C. So long as the conditions for the grant of maintenance u/s 125 Cr.P.C. are satisfied, the rights of the minor children, unable to maintain themselves, are not affected by Section 3(1)(b) of the 1986 Act. u/s 125 Cr.P.C., the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned, there is nothing in Section 125 Cr.P.C. which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 Cr.P.C. to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 Cr.P.C., cannot be allowed to be defeated except through clear provisions of a statute.We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance u/s 125 Cr.P.C. where they are minor and are unable to maintain themselves. Muslim father''s obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 Cr.P.C. is absolute and is not at all affected by Section 3(1)(b) of the 1986 Act. Indeed a Muslim father can claim custody of the children born through the divorced wife to fulfill his obligation to maintain them and if he succeeds, he need not suffer an order or direction u/s 125 Cr.P.C. but where such custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that he has divorced their mother. The right of the children to claim maintenance u/s 125 Cr.P.C. is separate, distinct and independent of the right of their divorcee mother to claim maintenance for herself for maintaining the infant children up to the age of 2 years from the date of birth of the concerned child u/s 3(1) of the Act. There is nothing in the 1986 Act which in any manner affects the application of the provisions of Sections 125-128 of the Cr.P.C. relating to grant of maintenance insofar as minor children of Muslim parents, unable to maintain themselves are concerned.
Indeed Section 3(1) of 1986 Act begins with a non obstinate clause �notwithstanding anything contained in any other law for the time being in force� and Clause (b) thereof provides that a divorced woman shall be entitled to a reasonable and fair provision for maintenance by her former husband to maintain the children born out of the wedlock for a period of two years from the date of birth of such children, but the non obstinate clause in our opinion only restricts and confines the right of a divorcee Muslim woman to claim or receive maintenance for herself and for maintenance of the child/children till they attain the age of two years, notwithstanding anything contained in any other law for the time being in force in that behalf. It has nothing to do with the independent right or entitlement of the minor children to be maintained by their Muslim father. A careful reading of the provisions of Section 125 Cr.P.C. and Section 3(1)(b) of the 1986 Act makes it clear that the two provisions apply and cover different situations and there is no conflict, much less a real one, between the two. Whereas the 1986 Act deals with the obligation of a Muslim husband vis-a-vis his divorced wife including the payment of maintenance to her for a period of two years of fosterage for maintaining the infant/infants. Where they are in the custody of the mother, the obligation of a Muslim father to maintain the minor children is governed by Section 125 Cr.P.C. and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children this obligation extends till their marriage. Apart from the statutory provisions referred to above, even under the Muslim Personal Law, the right of minor children to receive maintenance from their father, till they are able to maintain themselves, is absolute.
15. In view of the above discussion, this petition is allowed. The order of the learned ASJ is set aside and that of the learned M.M. is restored. The respondent shall pay maintenance in accordance with the order of the learned M.M. Arrears of maintenance shall be paid within two months from the date of this order. Insofar as maintenance of future period i.e. from December, 2006 is concerned, the respondent shall start paying the maintenance by 7th of each month.
