Calcutta High Court
Sk. Safique vs Papia Bibi on 17 November, 2000
Equivalent citations: II(2001)DMC336
JUDGMENT Debi Prasad Sengupta, J.
1. This revisional application is directed against an order dated 23.2.2000 passed by the learned Sessions Judge, Birbhum thereby dismissing the revisional application and affirming the order dated 12.7.1999 passed by the learned Judicial Magistrate, First Class, Dubrajpur, Birbhum in Misc. Case No. 146 of 1997 under Section 125, Cr.P.C.
2. It appears that the present opposite party/wife filed an application before the learned Magistrate praying for maintenance for herself. The learned Judicial Magistrate after recording evidence and considering the facts and circumstances of the case directed the present petitioner/husband to pay an amount of Rs. 800/- p.m. from the date of filing of the case. It appears that the present petitioner being the husband contested the proceeding under Section 125, Cr.P.C. by filing written objection denying all material allegations levelled against him. In the written statement it was stated by him that he had already divorced the opposite party/wife on 6.6.1998 and since she is a divorced Muslim woman, she is not entitled to get any maintenance under the provision of Section 125, Cr.P.C. The learned Magistrate after recording evidence and considering the facts and circumstances directed the present petitioner to pay an amount of Rs. 800/- p.m. towards maintenance of the opposite party /wife from the date of filing of the case. Challenging the said order of maintenance the petitioner preferred a revisional application before the learned Sessions Judge which was also dismissed by the learned Judge by his order dated 23.2.2000. Against such order of dismissal the petitioner came up before this Court in revision.
3. Mr. Tapash Kr. Ghosh, the learned Advocate appearing for the petitioner submits that the present opposite party /wife is not entitled to get any maintenance in her favour since she is divorced Muslim woman. Mr. Ghosh further contended that the Talaknama marked as Ext. A in the proceeding under Section 125, Cr.P.C was a certified copy of the original document and the same was not considered by the learned Magistrate and no evidentiary value was given to this particular document. Therefore, both the Courts below according to Mr. Ghosh committed wrong in allowing maintenance of Rs. 800/- p.m.
4. On a perusal of the order passed by the learned Sessions Judge it appears that relying on some decisions of this Court he was of the view that the Talak was n6t a valid Talak. A Mohammedan husband cannot pronounce Talak to his wife at his own whim without any pre-divorce conference to arrive at a settlement. For the purpose of tendering Talak the husband has to show reasonable cause which is to be discussed to his wife before tendering such Talak. The learned Judge also relied upon a judgment of Madras High Court reported in 1998 Criminal Law Journal 4782 wherein it was laid down that divorce must be preceded among Muslims by an attempt of reconciliation between the husband and wife and two mediators. The learned Judge also relied upon a judgment reported in 1994 (3) Crimes 236 page 241, wherein it was held by this Court that there must be reasonable cause for divorce which should be preceded by a pre-divorce conference so as to make an endeavour for reconciliation between the parties if possible.
5. Mr. Ghosh, the learned Advocate of the petitioner relies on a judgment reported in 1994 Calcutta Criminal Law Reporter (Cal.) 48. Wherein it was held that where the Court passed an order of maintenance under Section 125, Cr.P.C. in favour of wife not being a divorced wife and if after such order the wife is divorced by the husband in accordance with the Muslim Women (Protection of Rights on Divorce) Act, 1986, the order imposing liability to maintain the wife under Section 125, Cr.P.C. will also cease. It was further held that in such a case the Court would be entitled to entertain an application under Section 127, Cr.P.C. and passed appropriate order of proof of factum of divorce as contemplated by Section 2(a) of the Act. Relying on the said judgment Mr. Ghosh submits that since the present opposite party/wife is a divorced woman, she is not entitled to get any maintenance from her husband. The next judgment relied upon by Mr. Ghosh reported in 2000 Calcutta Criminal Law Reporter (Cal.) 195. Relying on a Division Bench judgment of this Court reported in 1989 Calcutta Law Reporter (Cal.) 197 the learned Single Judge of this Court held in the said judgment that where maintenance order is passed in favour of a Muslim wife and after such order was passed subsequent divorce takes place in accordance with law, such divorced wife is not entitled to get any maintenance after divorce and proceeding for vacating the maintenance order under Section 127 is maintainable. I have carefully gone through the said judgment and it appears from the said judgment that Talak was duly proved in the said case and Talak was duly communicated to the wife/opposite party and further that reasons for such Talak were also duly assigned in the Talaknama. In such circumstances the learned Judge was of the view that the learned Judicial Magistrate concerned was justified in passing an order under Section 127, Cr.P.C. Mr. Ghosh next relies on a judgment reported in 1989 Calcutta Criminal Law Reporter (Cal.) 197. On a perusal of the said judgment it appears that it was held in the said judgment that the provision of Section 125, Cr.P.C. will have no force in respect of a divorced woman. It was further held that in respect of a divorced woman if an order was passed prior to the commencement of the Act of 1986 that will cease to have any effect after the commencement of the Act of 1986. It was also held that if any order under Section 125, Cr.P.C. is passed in favour of any Muslim woman not being a divorced wife, and after such an order is passed the wife is divorced by her husband either of the party to the proceeding may file an application under Section 127, Cr.P.C. for variation/vacation of such order. In the said judgment of the Division Bench there is no indication as to what should be the manner or procedure for tendering Talak. From a reading of the judgment reported in 1994 Calcutta Criminal Law Reporter (Cal.) 48, it becomes clear that it was held by this Court that there must be reasonable cause for tendering. Talak, which should be preceded by a pre-divorced conference so as to make an endeavour for reconciliation between the parties if possible. While delivering the said judgment the learned Single Judge of this Court also took into consideration the Division Bench judgment of this Court reported in 1989 Calcutta Criminal Law Reporter (Cal.) 197, Abdul Sattar v. Sahanibibi and Anr. The judgment reported in 2000 Calcutta Criminal Law Reporter (Cal.) 195, is not also applicable in the present case. In the said judgment it appears that order of maintenance was awarded in favour of the wife and after such order was passed the husband divorced the wife by Talaknama. Thereafter the husband filed an application under Section 127, Cr.P.C. claiming that the wife is not entitled to get any maintenance after the date of divorce. It was held by the learned Magistrate that the opposite party/wife was entitled to maintenance upto the date of divorce. Such order was set aside by the Additional Sessions Judge and against such order revisional application was moved in this Court. This Court set aside the order passed by the Additional Sessions Judge and affirmed the order passed by the learned Magistrate. In the said case it appears that Talaknama was duly proved. The reasons for giving Talak was also recorded in the document. In the proceeding under Section 127, Cr.P.C. several witnesses were examined and on the basis of such evidence the learned Magistrate was satisfied that the factum of divorce had been proved according to law. In the present case it appears that in the proceeding under Section 125, Cr.P.C. the Talaknama (Ext. A) was not proved.
6. The original Talaknama was not produced before the Court. Marriage Registrar did not turn up before the Court for proof of the Talak and as such it was held by the learned Magistrate that Ext. A is a fake document and no reliance should be placed on it. However, the learned Sessions Judge was of the view that since such Talak was not in accordance with law, the same cannot be acted upon. Relying on the judgment of this Court the learned Sessions Judge rightly held that for the purpose of tendering Talak the husband has to show reasonable cause which need be discussed to his wife before tendering Talak. The Mohammedan husband cannot divorce his wife at his own whim and caprice. Divorce must be for a reasonable cause and it must be preceded by a pre divorce conference to arrive at a settlement. Since there was no attempt for settlement prior to divorce, there cannot be a valid divorce under the Mohammedan law.
7. I have heard the learned Advocates of both the parties. In my considered opinion the impugned order passed by the learned Additional Sessions Judge dismissing the revisional application and affirming the order passed by the learned Judicial Magistrate in Misc. Case No. 146/97 under Section 125, Cr.P.C. does not suffer from any illegality. The learned Judge passed the said order on proper application of mind and on perusal of relevant documents/Exhibits. Since the present application is a second revision and since the factum of divorce could not be proved before the Courts below, I do not find any reason to interfere with the order passed by the learned Sessions Judge. However, petitioner is always at liberty to make an application under Section 127 of the Code of Criminal Procedure before the learned Magistrate for variation of the order passed under Section 125, Cr.P.C, where he can prove the Talaknama, which could not be proved in the Trial Court, by adducing evidence. The present revisional application accordingly fails and the same is dismissed. The interim stay earlier granted by this Court stands vacated.