Under Muhammadan Law, a husband's statement of divorce made in a written statement in a maintenance claim amounts to a declaration of divorce as of the date the statement was made, even if the wife denies the divorce.

( 1 ) THE main question that arises for consideration in this Second appeal is whether in fact the 1st plaintiff was divorced by her husband as alleged by him in his notices Ex. A. 3 dated 12-5-1960 addressed to Sri Md. Osman and Ex. A. 6 dated 16-7-1960 addressed to Sri Abdul Waheed Ovasi.

( 2 ) TO appreciate the point involved, whether the divorce of the 1st plaintiff by her husband the defendant takes effect from the date of the notice at least, in view of the denial by the wife (1st plaintiff) that she was never divorced as alleged in the notices on the night of the Nikah, it is necessary to state the relevant facts. The 1st plaintiff was married to the defendant (appellant) on 17-5-50 and the prompt dower fixed at Rs. 50. 00 was paid then and there at the time of the marriage. It is her case that her husband consummated the marriage and that a son (2nd plaintiff) was born to them on 31-3-60 and that subsequently the defendant neglected her and their son and refused to maintain them and then came forward with a false story in the notices issued by him that he had divorced her on the very day of Nikah in order to avoid the liability to maintain her and their son.

( 3 ) IN this appeal were are not concerned with the claim of Rs. 2, 500. 00 the value of a house and the value of 5 tolas of gold, as that formed the subject matter of another appeal before the lower Appellate Court in A. S. No. 67/60. This Appeal (S. A. No. 578/64) is preferred by the defendant as the Court below confirmed the decree of the trial court in respect of the maintenance claims of the two plaintiffs. The defendant resisted the action for maintenance on the ground that Talak was pronounced on 17 the May 1950 itself, the day of Nikah and that he had absolutely no conjugal relationship with her so as to entitle her and the 2nd plaintiff born to her to demand maintenance form him. Negativing the contention of the defendant that he had divorced his wife on the day of Nikah itself and that the second plaintiff was not born out of his loins, the lower appellate Court confirmed the decree of the trial Court granting maintenance at the rate of Rs. 30. 00 per month to the 1st plaintiff and Rs. 10. 00 per month to the 2nd plaintiff.

( 4 ) MR. Jahangir Ali, learned counsel for the appellant contended that the courts below have ignored the accepted principles of Muhammadan Law in holding that the notice served by the defendant does not operate as declaration of divorce by the husband from the date of the notice of his wife and as such the decree under appeal is liable to be set aside. The 1st plaintiff significantly enough in her plaint averred that when she demanded maintenance from her husband he sent her a notice on 12 the May 1960 (Ex. A. 3) with an incorrect statement, that she has been divorced on the date of the marriage itself. So far as the defence of the defendant that he had divorced his wife on 17-5-50, the date of Nikah is concerned, the Courts below have not chosen to rely on the evidence placed by him and accepted the plea of the plaintiff that she was never divorced on the day of marriage as alleged by her husband and for the firs time the story of divorce was trotted out in the notice. Ex. A. 3 dated 12/05/1960. The defendant, it may be noticed, followed it up by issuing another notice (Ex. A. 6) dated 16-7-1960 reiterating his stand that he had divorced his wife on 1 7/05/1950 itself. Since the courts below have concurrently held on the evidence on record, that the defendant did not divorce his wife as contended by him on 17-5-50. I am unable to interfere with this finding of fact. But the main question remains whether the divorce would take effect from the date of notice although there is the denial by the wife that she has been divorced as alleged in the notice on 17/05/1950 and the subsequent notice.

( 5 ) A Division Bench of the Allahabad High Court in Asmat Ullah v. Mt. Khatun Unnissa, Air 1939 All 592 in a somewhat similar c