Madhya Pradesh High Court
Mohd. Umar Khan vs Mst. Gulshan Begam on 28 February, 1991
Equivalent citations: 1992CRILJ899, II(1991)DMC15, 1991(0)MPLJ586
JUDGMENT B.M. Lal, J.
1. Non-applicant Mst. Gulshan Begam brought an action under Section 125 Code of Criminal Procedure against her husband applicant herein, claiming maintenance for herself and for her minor son Mohd Safa Khan, aged about 7 years, before the Judicial Magistrate, First Class Kawardha in Misc. Criminal Case No. 69 of 1989.
2. Mst. Gulshan Begam, non-applicant No. 1, averred that she was married to applicant. Mohd.Umar Khan some time in 1981 and cut of their wed-lock, Mohd. Safar Khan was born. However, she further averred that she was being illtreated by her husband, applicant herein, and also that he husband contracted the second marriage. On these grounds, the application under Section 125 Cri. Pro. Code was made.
3. After receipt of the notice, the applicant/husband emerged with the plea that in December. 1983, he had divorced the non-applicant No 1 Mst Gulshan Begam and thereafter, in the month of July 1984, at the request of relatives of the wife (non-applicant No. I, he had further divorced her in writing.
4. Non-applicant No. 1 wife requested the trial Court for grant of interim maintenance. However, the husband opposed this submission and contended that the applicant as made and filed under Sec. 125 Cr.P.C. is not maintainable in view of the Act No. 25 of 1986 namely Muslims Women (Protection of Rights on Divorce) Act, 1986, in short the Act of 1986 The learned trial Court, by the impugned order, awarded Rs. 400/- per month as interim maintenance against which this revision is filed.
5. Learned Counsel appearing for the applicant vehemently contended that in view of the provisions of Section 5 of the Act of 1986, the present application by the wife for maintenance is not maintainable. Section 5 of the Act of 1986 reads as under :
"Sec. 5: Option to be Governed by the provisions of Section 125 to 128 of Act 2 of 1974-If, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation : For purposes of this Section 'date of the first hearing of the first hearing of the application' means the date fixed in the summons for the attendance of the respondent to the application."
6. Admittedly, the applicant husband has not declared by any affidavit or any other declaration form as may be prescribed, whether jointly or separately, that they would prefer to be governed by Sections 125 to 128 Criminal Procedure Code. This being so, the submission made has some force. However, Shri Usmani, learned Counsel for the non-applicants contended that whether Talak had taken place or not, is required to be proved by evidence. Section 310 of. the Mohomedan Law deals about Talaks according to which Talak amongst Mohomadans may be oral or in writing. This provision of the Mohomadan Law reads as under :
"Sec. 310 : Talak may be oral or in writing :
A Talak may be effected (1) orally (by spoken words) or (2) by a written document-called a talaknama."
In view of this provision, no evidence is required to prove Talak as the divorce by husband is complete just by utterance of words 'TALAK, TALAK, TALAK' thrice and the presence of a third person is not necessary. In this view of the matter, there is no option to the wife to challenge Talak. This being so, the application made and filed is not maintainable.
7. Consequently, this revision is allowed. Impugned order dated 25-9-1989 is quashed.