A wife is entitled to maintenance allowance up to the date she becomes aware of the divorce, even if a valid Talaknama has been executed and registered.

( 1 ) THIS is a reference under Section 438 of the Code of Criminal Procedure made by the Sessions Judge of Burdwan recommending that the order passed under Section 488 (1) of the Code of Criminal Procedure granting a monthly maintenance allowance to Hadisa Bibi and her two minor children be set aside.

( 2 ) HADISA Bibi's case in the court below was that she was married to the opposite party, Wahad Baksh Seikh in the year 1358 B. S. in Nika form. There were two children born to her who are now minors. There was a duly registered Kabinnama fixing a dower. Wahad Baksh Seikh has another wife and two daughters and a son were born to her. Hadisa Bibi was living with her husband, Wahad Baksh Seikh since her marriage. Since Ashar 1362 B. S. Wahad Baksh started ill-treating Hadisa Bibi in various ways and also neglected to maintain her and her children as a result of which she was forced to leave her husband and to come to the house of her father who is a poor man unable to maintain her and her two children. Hadisa Bibi claimed a sum of Rs. 30/- for herself and Rs. 20/- for each of her children per month as maintenance allowances. The marriage with Hadisa Bibi is however admitted by Wahad Baksh Seikh.

( 3 ) THE case of Wahad Baksh is that she had been given Talak in the presence of witnesses and it was duly registered by the local Kazi on the very next day of his marriage with her. Wahad Baksh's case further is that Hadisa Bibi voluntarily left his protection declining to live with him unless Wahad Baksh would divorce his first wife. Wahad Baksh also denied the paternity of her two children.

( 4 ) THE learned Magistrate found that the Talaknama was kept concealed from her until the matter came out in the course of the present proceeding under Section 488 of the Cede of Criminal Procedure. Accordingly the learned Magistrate allowed maintenance to Hadisa Bibi up to the date of her cross-examination when according to the learned Magistrate she first became aware of the fact of divorce.

( 5 ) THE learned Sessions Judge has recommended the setting aside of the order of maintenance on the ground that valid Talaknama takes effect from the date of execution and as such however abominalble Wahad Baksh's conduct may be an application by his wife for maintenance long after the date of Talaknama is not

maintainable, and even an application on behalf of the children on the basis of the present application could not be allowed.

( 6 ) THE evidence in the case shows that there was a registered Talaknama, Ex. B. The learned Judge pointed out that the learned Magistrate accepted the registered Talaknama as true and valid and in the absence of words showing different" in- tention, a divorce in writing operated as an irrevocable divorce (Talak-ki-bin) and takes effect immediately on its execution. The learned Judge is of the view that in the present case the Talaknama did not show any different intention and as such the Talak became irrevocable on its execution and the validity of a written Taltiknama or its operation did not depend upon its communication to the wife. The Talak therefore, in the opinion of the learned Judge, became effective on the date of its execution and registration and although such Talak was not communicated to the wife it was in. effect an irrevocable Talak as from the date of the document.

( 7 ) I do not think in the facts of the present case the learned Sessions Judge was right in making his recommendation before this Court in the way he did. In the case of Ahmad Kasim Molla v. Khatun Bibi, ILR 59 Cal 833: (AIR 1933 Cal 27), Costello J. , held that when it was not established by the plaintiff that the existence of the Talak came to the knowledge of the defendant prior to the proceeding under Section 488, Cr. P. C. , it could not be disputed that she was entitled to maintenance up to that lime. It will be observed that the maintenance that has been awarded by the learned Magistrate is for that period only. Th