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4. The learned District Magistrate held that the first accused could divorce her husband by Faskh. He also held that even if divorce by Faskh is not valid in law, she cannot be deemed to have committed an offence as she was protected by the advice given by D. W. 1. All the accused were acquitted. It is against this acquittal that the present appeal is filed.

5. Before considering the case on its merits, it would be useful to examine the law on the point. The grounds on which a muslim wife can seek divorce are now codified in the Act mentioned above. A little legislative history of the Act is apposite. The majority of Muslims in India are Hanafis. According to the Strict Hanafi law. Muslim women had no right to get divorce from their husbands. The law was so rigid that muslim wives suffered untold hardships on account of the absence of a right to obtain divorce. In his book entitled "The question of protection of Muslim Personal Law" in Urdu by Shri Mahamood Thahir. Associate Research Professor at the Indian Law Institute, New Delhi, at page 30, the following passage appears:

16. There is some confusion regarding the scope of the word 'Faskh'. The word 'Faskh' is an arabic word, which is translated in a Dictionary of Modern written Arabic by Hanswehr as "cancellation, abolishment, recision revocation, abrogation, annulment etc." In the Muslim Law by Tyabji at page 143, note No. 5, it is stated: "In Arabic. Faskh equals to annulment, or cancellation or judicial recision of contract." "and at page 194 beneath Section 211, it is observed as "dissolution of marriage by Courts: by Faskh". In the book , on Muslim Marriage and its Dissolution' by Shri R. B. Sethi at page 78, it is said:

"Kinds of divorce .......................

(7) Faskh cancellation of marriage or judicial or juridical separation." This word does not find a place in Mulla's Mohammedan Law, in the famous shaffi text 'Minhaj' or in the Hanaffi text Hidays.

17. My object in giving the exact meaning of the word 'Faskh' is to highlight the point that 'Faskh' means dissolution and it is not a ground on which marriage between a Muslim woman and man can be dissolved. To repudiate the marriage toy 'Faskh' without the intervention of a Court is opposed to the law of the land. It was to prevent such abuses that the Act has been enacted. It without intervention of Courts, marriage can be dissolved by the unilateral repudiation by the wife calamitous results will follow. There have been instances in the past where unscrupulous fathers-in-law or other near relatives of the wife resorted to "free advice" from "agreeable men" learned in theology to get rid of recalcitrant or poor sons-in-law but loving husbands. It is the duty of Courts to guard against any such encroachment in its domain by unscrupulous persons. No person, however great or learned should be allowed to usurp the functions of a Court. The advice given by a person, no matter however learned or great, can hardly be a substitute for a decree of Court. It is therefore clear that the unilateral repudiation of the marriage by the wife in this case does not have the sanction of law and at the time" she entered into the second marriage her first marriage with P. W. 2 was subsisting. In this case, there is the additional circumstance of the wife having taken resort to a civil suit for getting her marriage dissolved, where she failed. She should, therefore, be imputed with, the knowledge that to get a divorce she should necessarily move the Court. As discussed above, the suit was a counterblast to the suit by P. W. 2 for restitution of conjugal rights. Of course, she did not succeed in that suit. If all unsuccessful wives before Courts can seek shelter under an advice given by a 'learned man' and violate the provisions of law and disobey the decrees of Courts, we will be bringing down the authority of law and dignity of Courts. I have therefore no hesitation in holding that the repudiation of marriage by Faskh by the first respondent has no legal sanction and in spite of the alleged Faskh, the marriage between P. W. 2 and the first respondent continued.

21. In Ismail v. Kadeeja Umma, 1958 Ker LT 1042 - (AIR 1959 Ker 119) a Division Bench of this Court held that an action under Section 494. I. P. C. will not lie against a Muslim couple when, the wife had repudiated the marriage by Faskh. There again, this Court was considering a case which arose from the Travancore area where Act 8 of 1939 was not extended then and therefore the principle laid down in that decision if not applicable to the case in hand. Ad 8 of 1939 was extended to the Travancore area only on 1-2-1960. This case therefore cannot be an authority for the proposition that a Muslim wife can by Faskh dissolve her marriage with her husband. The learned District Magistrate considered this case and held that Faskh was a valid mode of divorce. The distinction was not brought to his notice and the principle enunciated in that decision has not been properly considered. This decision was rendered prior to the extension of Act 8 of 1939 to the Travencore Area. The position is now well-settled that marriage cannot toe repudiated by a Muslim wife except under the provisions of the Act.