JUDGMENT
Radhakrishna Rao, J.
1. The 1st petitioner is the wife of the 1st respondent and petitioners 2 and 3 are their children. The marriage between the 1st petitioner and the 1st respondent took place on 14-1-85 at New Malakpet, Hyderabad. After a few months the 1st respondent and his parents and sisters started harassing the 1st petitioner. On 15-5-88 the wife gave a complaint to the police against her husband for illtreatment and after investigation the Police filed a charge sheet against the 1st respondent and others under Sections 498-A and 406 IPC read with Section 34 IPG and Sections 4 and 6 of the Dowry Prohibition Act before the Mahila Court, Hyderabad and the said case is still pending trial before the said Court. On 13-9-88 the wife filed an application for maintenance under Section 125(1) Cr.P.C. PWs 1 and 2 were examined on behalf of the wife and the 1st respondent has examined as R-W1. The learned IV Metropolitan Magistrate Hyderabad framed Point No. 1 contended to be the wife of the respondent and is entitled for the maintenance under Section 152 Cr.P.C. On a consideration of the entire evidence on record the learned Magistrate cama to the conclusion that the divorce given by husband on 4-6-88 is valid and therefore the 1st petitioner ceased to be the wife of the 1st respondent from 4-6-88 and she was not entitled to claim any maintenance. However the learned Magistrate granted maintenance at Rs. 400/- per month to petitioners 2 and 3 each from the date of the order. While granting maintenance to petitioners 2 and 3 the learned Magistrate took into consideration the income potentiality of the husband. Since the status of the parties has been brought into the evidence and the minimum requirement of putting them in good school is there, the amount of maintenance that has been granted by the learned Magistrate can easily be justified and it does not call for any interference.
1. The next and most important Point that has been raised on behalf of the wife is that since the Siabanama Ex. P1 provided an arbitration clause and since the parties agreed to abide by the arbitration the husband’s right to pronounce ‘talaq’ cannot be given effect to. In support of that contention the learned Counsel for the petitioners relied upon a passage from the book. ‘The meaning of the Glorious ‘Koran’ an Explanatory Translation by Mohammed Marmadke Pickthall:
“35. And if he fear a breach between them twin (the man and wife) appoint an arbitrator from his folk and an arbiter from her folk. If they desire amendment Allah will make them of one mind. Lo’. Allah is ever Knower Aware.”
2. The law on this aspect is very clear. A marriage in Muslim Law is a civil contract and is not a sacrosanct: A leading judgment of Mahamood J, in Khadir v. Saleema(l) (1886)8 Allahabad 149 at pages 154 and 155 was considered to be a classic one on this subject. Marriage confers important rights and imposes obligations both on the husband as well as on the wife. Some of these rights and obligations can be altered by an agreement of the parties. A contract of marriage and the conditions of the contract can be enforced by the Court of Law unless they are unlawful and opposed to public policy. The contract of marriage can be terminated (i) by the husband unilaterally in the prescribed form which is called ‘Talak’ (ii) by the wife under specified conditions which is called ‘qula’ or ‘Mubarat’ and the specified case of delegated divorce (iii) by judicial proceedings under Dissolution of Muslim Marriage Act 1939.
The parties may also agree for dissolution of marriage by the wife to put an end to the contract of marriage delegating the power of the husband to divorce the wife to wife herself which is called ‘Talaki Tafwid’ (delegated divorce) without the intervention of the Court. (Vide Ameer Ali’s Mohammadan Law and Otlines of Muslim Law by Fyzee paragraph 14 (2) under the head “enforcement of Lawful Agreements”). Any valid condition can be imposed in the contract of marriage at the time of marriage in the marriage deed that condition may not relate of restricting the power of the husband to unilaterally put an end to the marriage or pronounce Talaq. Such a condition can be regarded as an invalid condition. Whether the particular term of agreement mentioned Ex, P 1 has the effect of restricting. the husband from dissolving the marriage has to be considered on the facts of each case. The condition “in case of any matrimonial cause (dispute) the bride and the bride-groom shall be bound by the decision of the arbitration which will be nominated by themselves” does not expressly put an embargo on the power of the husband to pronounce the Talaq. However having regard to the irresponsible exercise of the power by the husband in the matter of unilaterally pronouncing. Talaq, any matrimonial cause dispute in the said clause of the agreement may be given a wider meaning.
3. When the husband was given the right to pronounce Talaq and that husband has given that right to the wife to pronounce Talaq on his behalf it cannot be said that the right which has been recognised by Muslim law has been taken away by virtue of the incorporation of a condition in Nikah Nama. Any condition which is repugnant or contrary to the rights that have been given to the husband to pronounce Talaq either by himself or in a delegated form cannot be allowed to be agreed upon between the parties and since this clause interferes with the arbitration clause even though it is a civil contract and it cannot be said that the wife has has got a right to enforce the clause in the agreement i.e. ‘Nikahnama’. The clause is contrary to the unfettered right of the husband to pronounce Talaq. In this case even the wife has no right to pronounce ‘Talaq’ as there was no delegation in her favour. On the other hand the husband pronounced Talaq and communicated to the wife. By the time Talaq has been pronounced and given effect to the condition that has been incorporated in the Nikhanama i.e., Ex. P1 has got lost its effect. In these circumstances this Court finds that the condition of imposing an arbitration clause cannot be enforced by the wife in the event of the husband pronouncing ‘Talaq’ either by himself or through an authenticated form recognised by the Muslim Law.
4. The Criminal Revision Case is accordingly dismissed.