A husband's declaration of divorce in his written statement or counter constitutes a divorce effective from the date of filing the statement, but his liability to pay maintenance to his divorced wife is limited to the period of iddat, as per the Muslim Personal Law and Section 3(1)(a) of the Muslim Woman's (Protection of Rights on Divorce) Act, 1986.

JUDGMENT :

B.N. Dash, J. - In this revision u/s 115 of the Civil Procedure Code, 1908 (for short "the Code') the petitioner-husband has assailed the order of the learned Subordinate Judge, Balasore granting interim maintenance at the rate of Rs. 500/- per month to the opposite party-wife.

2. Admittedly, the opposite party Sabatun Bibi (hereinafter referred to as 'the wife') and the petitioner Gafur Saha (hereinafter referred to as 'the husband') are Muslims, being of Hanafi School of Sunni sect. The wife, as plaintiff, instituted a suit for maintenance in the Court of the Subordinate Judge, Balasore claiming maintenance at the rate of Rs. 500/- per month from the husband together with a petition u/s 18-A of the Court Fees Act praying for exemption from payment of Court fees. Before the suit was admitted, the wife filed a petition in Misc. Case No. 77 of 1990 claiming interim maintenance of Rs. 500/- per month from the husband alleging that the latter while living with another lady was not maintaining her and her three minor children born through him, despite being possessed of sufficient means. The husband filed a counter alleging that on 1-8-1990 he had divorced the wife as per their personal law in his Mirzapur residence by giving 'Talaq' in presence of two gentlemen and although he offered Rs. 500/- towards mahr and Rs. 1,000/- towards maintenance for three months, the wife refused to accept the same. It was also pleaded that in view of the Personal Law of the Muslims, the petition for interim maintenance was misconceived.

3. The learned Subordinate Judge came to held on the pleading of the parties that the fact of divorce-having not been established, it must be taken that there was subsistence of marriage between the two and that the wife could be given interim maintenance by the Court by exercising its inherent power u/s 151; of the Code. Having found as such, the learned Subordinate Judge directed the husband to pay Rs. 500/- per month to the wife from the date of filing of the application having further held that the husband having sufficient means was not maintaining her and her three minor children. Being aggrieved by such order, the husband has filed this revision.

4. This revision first came up for hearing before a Single Judge of this Court on 14.4.1992. When relying on the decision reported in 1968 (XI) OLR 163 : (Sk. Mohiuddin v. Nasima Bibi), it was contended on behalf of the husband that he having declared in his counter to the petition for interim maintenance that he had already divorce his wife, such declaration was sufficient to constitute divorce. Since the said decision was clearly in support of the contention and as the learned Single Judge did not agree with the view expressed therein holding the same as offencing public policy and having far reaching consequence over a community in India, he has referred the matter for reconsideration by a larger Bench and this is how the matter has come before this Bench.

5. Mrs. P. Mohanty, the learned Counsel for the husband contends that although the plea of divorce on 1.8.1990 has not been proved, the learned Subordinate Judge want wrong in his finding that there was subsistence of marriage. According to the learned Counsel, the divorce between the parties must be deemed to have taken place with effect from the date of filing of counter by the husband where he had specifically disclosed that he had divorced the wife on 1.8.1990. It Is also contended by her that since under the Personal Law of the Muslims, a husband is obliged to maintain his divorced wife only for the iddat period i.e. for three months, the order of interim maintenance cannot be sustained in law. Let us now examine the correctness of these contentions.

6. Coming to the first contention, it may be stated that there is no controversy at the bar that dissolution of marriage by divorce under the Mohammedan Law can be affected by 'Talaq' which means repudiation by the husband. But the questions arises whether