Back
2004 Supreme(Cal) 784
High Court Of Calcutta
Pravendu Narayan Sinha
JAHANARA BEGUM - Appellant
Versus
SIRAJUL MALLICK - Respondent
C. R. R. 2081 Of 2002
Decided On : 12/22/2004
Kanti Ghosh, RABINDRA NATH PAL, SUBRATA GHOSH
A Muslim wife is entitled to maintenance under Section 125 of Cr. P. C. even after divorce, as long as she has not remarried or there is no change in circumstances.
Headnote:
MAINTENANCE - MUSLIM LAW - DIVORCE - MAINTENANCE TO DIVORCED MUSLIM WIFE - VALIDITY OF TALAK - PRONOUNCEMENT OF TALAK - COMMUNICATION OF TALAK - MAINTENANCE UNDER SECTION 125 OF CR. P. C. - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTIONS 3, 4 AND 5 - EFFECT OF TALAK ON MAINTENANCE RIGHTS - VALID REASON FOR TALAK - RECONCILIATION ATTEMPTS - INTERPRETATION OF HOLY QURANIC VERSES - SUPREME COURT PRECEDENTS - APPLICATION OF LEGAL PRINCIPLES TO FACTS OF CASE - ENHANCEMENT OF MAINTENANCE AMOUNT - MODIFICATION OF MAGISTRATE'S ORDER.
Fact of the Case:
A Muslim wife filed an application under Section 125 of Cr. P. C. against her husband for maintenance, alleging cruelty and torture by him and his mother, and her subsequent forced departure from the matrimonial home. The husband contested the application, claiming that the wife had left the matrimonial home voluntarily and that he had divorced her by pronouncing 'talak' on 4.7.98, which was communicated to her on 1.9.98.
Finding of the Court:
The court held that the 'talak' was invalid as it was not pronounced in accordance with Muslim law, there was no valid reason for the divorce, and no attempt at reconciliation was made. The court also held that the 'talak' was not communicated to the wife and that a mere plea of previous 'talak' in the written show-cause could not be treated as a pronouncement of 'talak'.
Issues: 1. Whether the 'talak' pronounced by the husband was valid according to Muslim law? 2. Whether the 'talak' was communicated to the wife? 3. Whether a Muslim wife is entitled to maintenance under Section 125 of Cr. P. C. after divorce? 4. Whether the amount of maintenance awarded by the Magistrate was adequate?
Ratio Decidendi: 1. The court relied on the Supreme Court decision in Shamim Ara v. State of U. P. to hold that a 'talak' must be pronounced and communicated to the wife to be effective. 2. The court also relied on the Gauhati High Court decisions in Sri Jiauddin Ahmed v. Mrs. Anwara Begum and Must. Rukia Khatun v. Abdul Khalique Laskar to hold that a 'talak' must be for a reasonable cause and be preceded by an attempt at reconciliation between the husband and wife by two arbiters. 3. The court held that the 'talak' in the present case was invalid as it was not pronounced in accordance with Muslim law, there was no valid reason for the divorce, and no attempt at reconciliation was made. 4. The court also held that the 'talak' was not communicated to the wife and that a mere plea of previous 'talak' in the written show-cause could not be treated as a pronouncement of 'talak'. 5. The court held that a Muslim wife is entitled to maintenance under Section 125 of Cr. P. C. even after divorce, as long as she has not remarried or there is no change in circumstances.
Final Decision: The court allowed the wife's revisional application and modified the Magistrate's order to enhance the amount of maintenance to Rs. 1000/- per month from the date of filing of the application. The court also directed the husband to pay the arrear maintenance in 40 equal monthly instalments along with the regular monthly maintenance amount.
( 2 ) THE facts of the case is that, the petitioner filed an application under section 125 of Cr. P. C against, her husband, the opposite party (O. P.) alleging that their marriage was solemnised about four years back from the dale of filing of the application. The application was filed in the Court on 16. 6. 98. After marriage she went to her matrimonial home and started living with the opposite parly but, the opposite party and his mother started torture upon her demanding further dowry. The O. P. and his mother even tried to kill her hut she was saved by the elder brother of O. P. , and thereafter, her brother took away her from matrimonial home to her father's house. Since then she is living in her father's house. The O. P. did not enquire about her and did not pay her any money or maintenance. The O. P. has business of 'jari' and earns Rs. 3,000/- to Rs. 4,000/- per month. The petitioner has no income of her own and she is unable to maintain herself and she claimed maintenance @ Rs. 1,000/- per month from O. P. The O. P. , contested the Misc. Case by filing written show-cause where he denied all the material averments of petitioner's application. He inter alia contended that, since marriage the petitioner did not respect him as husband and his mother. Petitioner's brother-in-law namely Nadir Molla always disturbed peaceful conjugal life of petitioner and O. P. He asked the petitioner not to entertain her brother-in-law but she did not care at all. She left his house at the ill advise of her brother ill-law and is staying in her father's house voluntarily without any reason. When all his attempts to bring her back to his house failed, he divorced the petitioner on 4. 7. 98 by pronouncing 'falag' and also executed a talaqnama before Notary Public. After the 'talacf, the marital relationship between them stood dissolved in all respects and the petitioner is not entitled to claim any maintenance from him. He has no employment as alleged and rather he is an agricultural labourer and hardly earns Rs. 500/- per month.
( 3 ) AFTER evidence and hearing the parties, the learned Magistrate came to the decision that there was valid 'talaq' dated 4. 7. 98 and it was duly communicated to the petitioner in Court on 1. 9. 98. Accordingly, the petitioner is entitled to get maintenance from the date of filing of the application under section 125 of Cr. P. C. till her knowledge of divorce i. e. , from 16. 6. 98 to 1. 9. 98. Learned Magistrate granted maintenance to the wife petitioner from 16. 6. 98 to 1 9. 98 for 2 and 1/2 months only @, Rs. 600/- per month. Being aggrieved by and dissatisfied with the order of the learned Magistrate the wife petitioner has moved this Court in this revisional application.
( 4 ) LEARNED Advocate for the petitioner contended that in view of provisions of law even a divorced wife is entitled to get maintenance. During pendency of the proceeding under Section 125 of Cr. P. C. the husband with malafide intention divorced her in order to avoid payment of maintenance. The law nowhere says that a divorced wife cannot claim maintenance and even in muslim Law a divorced wife is entitled to claim maintenance. The 'talacf as alleged was not proved at all nor, the fact of 'talacf was communicated to the petitioner by the O. P. husband. The 'talaq' before the Notary Public is not valid in law. The learned Magistrate erred in law regarding factum of 'talacf and accordingly the order passed by the learned Magistrate is illegal and without jurisdiction. The said order requires to be set aside and the prayer of the petitioner should be granted and amount of maintenance should also be enhanced. In support of his content
