JUDGMENT
P.K. Deb, J.
1. This petition has been filed under Section 482, Criminal Procedure Code by the husband-petitioner against the wife-opposite party for quashing of the order dated 21.9.1994, as contained in Annexure-1 passed by Shri Ram Kishore Singh, the then Sessions Judge, Singhbhum (East), Jamshedpur in Criminal Revision No. 17/94 arising out of an order dated 7.12.1993 contained in Annexure-2 passed by the then Sub-Divisional Judicial Magistrate, Ghatshila in Misc. Case No. 2/86 under Section 125 of the Criminal Procedure Code.
2. The opposite party No. 1-wife had filed an application under Section 125, Criminal Procedure Code for grant of monthly maintenance to her and to her children before the Sub-Divisional Judicial Magistrate at Jamshedpur in Misc. Case No. 2/86. Her case was that she was legally married to the petitioner and after marriage they started to reside together as husband and wife. The opposite party has got his own Biscuit Bakery shop at Ghatshila and earns Rs. 5,000/- per month and that he has also got a rice shop at Sakchi (Jamshedpur) having monthly earning of Rs. 7,000/-. After the marriage both the spouses were leading a happy conjugal life and four female off-springs were born in the wedlock. But, all on a sudden the petitioner-husband started beating the opposite party-wife without any reason and she was not provided with food and clothes. In the month of June, 1985 the wife had to leave the house of the opposite party-husband for fear of her life and ultimately took shelter in her father’s house at Ghatshila and having no income she is passing her days in vagrance. Two minor children are residing with the wife while the other two with the husband. She claimed for maintenance for herself and for her two minor female children. The opposite party contested the claim besides taking other pleas regarding denial of so much monthly income as stated in the petition under Section 125, Criminal Procedure Code. He had taken the plea that the wife was an ill-tongued and ill-tampered woman and she was completedly disobedient and had no affectionate consideration for the conforts and well being of the husband. She was in the habit of quarreling with the husband and his mother as well and also with the neighbours and as such the life of the husband became miserable. He tried his level best to maintain the conjugal life but having unable to tolerate the situation. He divorced her on 14.7.1985 by uttering the word ‘Talak’ thrice in the hearing of the applicant and also other three persons and that event of divorce took place during the stay of the wife and the husband at Ghatshila and from that date there remained no conjugal relationship between the two. It was admitted that at the time of giving ‘Talak’ the wife was pregnant for about seven months. This matter of Talak was referred to Kaji and a Fatwa was given by the Kaji to the effect that Talak given by the husband was a valid one in the eye of law.
3. The case proceeded on the pleadings of the parties as mentioned above. Both parties adduced evidence. From the side of the wife, there was total denial of the plea of divorce as taken by the husband. After considering the evidence on record, the learned Sub-Divisional Judicial Magistrate held that the divorce, as stated by the husband, was not proved and as such held that there was no dissolution of marriage by divorce on 14.7.1985 as stated from the side of the husband and as such considering the income of the husband had passed order of maintenance to the tune of Rs. 300/- per month in favour of the wife while Rs. 200/ – per month each for the two minor children who were in custody of the wife.
4. Against this order of maintenance, the husband preferred Criminal Revision No. 17 of 1994 before the Sessions Judge at Jamshedpur. That Criminal Revision was also dismissed and besides holding that the divorce could not be proved by the husband, it was also held that even if that divorce was granted then also the said divorce is completely illegal in the eye of law as during the pregnancy of the wife, question does not arise regarding grant of divorce in favour of the wife referring to Section 51 of the Mohammadan Law written by Shri B.R. Verma.
Now, this quashing petition has been filed in the form of Second Revision by the husband as mentioned above.
5. Second Revision is totally barred but it has been held by the Apex Court that such sort of petition can be maintained to see the legality of otherwise by the High Court, if a petition is preferred under Section 482, Criminal Procedure Code. This petition was admitted vide order dated 15.9.1995 and while in matter of prayer of stay, it was ordered that the petitioner i.e. the husband should go on paying maintenance to the children alone as granted by the Courts below and also Rs. 150/- per month instead of Rs. 300/- per month to the wife-opposite party No. 1. The opposite party No. 1 on appearance submitted that such payments had not been made to the wife as per order of this Court and as such the petition should be thrown out without hearing but the husband was making submissions that payment had already been made. Ultimately, a supplementary affidavit was filed giving a list with dates showing payments to the opposite party-wife. No counter affidavit has been filed against such supplementary affidavit being filed from the side of the petitioner.
6. Mr. N.K. Prasad, appearing on behalf of the petitioner has not challenged the findings regarding legality of the divorce being pronounced by the husband on 14.7.1985 as alleged by him as admittedly on that date the wife was pregnant. But his submission is that even if the divorce pronounced earlier could not be proved or valid but as the intention of the husband was to divorce her then such divorce should be construed from the date of filing of the written statement/show cause filed in the proceedings under Section 125, Criminal Procedure Code i.e. 21.7.1986. According to him, if the divorce is construed from 21.7.1986 then the petition under Section 125, Criminal Procedure Code is not maintainable as per the new Act, namely, Muslim Women (Protection of Rights and Divorce) Act, 1986 and she can have only a remedy under Section 3(l)(a) read with Section 4 of the Act itself. According to Mr. N.K. Prasad, the petition under Section 125, Criminal Procedure Code ought not to have been held maintainable as there was no consent given by the parties jointly regarding the continuance of the petition construing it as a petition under Section 3(l)(a) of the Act and as such the whole proceeding should be quashed.
His submission is that even if the petition is held to be maintainable on compassionate ground to the limited extent to a petition under Section 3(1 )(a) of the Act then the wife would be entitled to maintenance upto Iddat period and nor more than that and for Den Mohar and other statutory payable as per the New Act. He has tried to make a difference of the present case with the question of law decided by a Division Bench of this Court as reported in 1997 (1) PLJR page 278, Haroon Rashid v. Raqueeba Khatoott.
7. Regarding maintainability of the petition under Section 125, Criminal Procedure Code or its maintainability under the New Act of Muslim Women as mentioned above would depend upon the construing of the date of divorce between the spouses. Mr. N.K. Prasad has relied on a decision of this Court on his submission that even if the divorce previously being taken effect to as alleged by the husband would not be proved or valid one then the divorce should be construed from the intention of the parties from the date of filing of the show cause, the copy of which was supplied to the wife on 21.7.1986. Reference has been made to a Single Bench judgment of this Court as reported in 1990 BBCJ 505, Muzaffar Alam v. Qamrun Nisa.
The placitum of that case reads as follows with reference to paras 8 and 9 of the judgment:
“Muslim Law-divorce-when effective-even if no cogent evidence is to prove divorce, mention of the fact in the written statement makes the divorce complete and it becomes effective from the date of the filing of the written statement.”
8. The learned Single Judge relied in coming to such decision on AIR 1961 Bombay 121, Chand Bai v. Bandesa Mujawar, and AIR 1951 Hyderabad 117, Whab Ali v. Qmri Bi & Ors. In paras 8 and 9 of that judgment the learned Single Judge has referred to Islamic Convention of Quoranic Direction from Syed Ameer Ali’s Mohomadan Law and also on Macnaghten’s Mohomadan Law. These are being quoted from the judgment of 1961 Bombay (supra). The case before the learned Single Judge was that the marriage was admitted in the case and the husband took plea that he had already divorced his wife on an earlier date but regarding that divorce on an earlier date could not be legally proved and as such it was held that when the intention of the husband was to divorce the wife the same should be construed from the date of filing of the show cause. In that case, there was no plea to the effect that divorce as alleged by the husband was a legal impossibility rather the fact was that the divorce was not being proved by cogent evidence.
So, there is difference of factual position of the above referred case of this High Court with the present case. In 1961 Bombay 121, the case was under the old provisions of Section 488, Criminal Procedure Code for maintenance by the wife against the husband. The learned Single Judge of Bombay High Court in that case held that when the husband filed a written statement in a petition by the Mohammedans wife under Section 488, Criminal Procedure Code to the effect that he had already divorced the wife about 30 years ago, the statement even if the fact of such divorce is not proved, operates as a declaration of divorce as from the date of written statement and the wife is then entitled only to maintenance for a period of Iddat i.e. for three lunar months from the date of the written statement. There was a plea in that case to the effect that even if the divorce is construed to be effective as a declaration from the date of filing of the show cause in a proceeding under Section 488, Criminal Procedure Code then also the same could not have legal entity until and unless it could be proved that the date of filing of the show cause falls in between two menstruation period of the wife as according to the Mohomadan Law of divorce, the divorce should be made between two periods of menstruation in case of oral divorce. It was held that such divorce does not apply to a divorce in writing. It was further held that during the proceedings of the 488, Criminal Procedure Code case the wife was already 50 years of old and was having no menstruation and as such, such condition of divorce is not maintainable in the case.
9. The facts of the Bombay case is different from the present case, inasmuch as there was a previous maintenance case also between the parties and in that previous proceedings also the husband had stated regarding declaration of divorce. In the written statement filed by the husband in those proceedings the husband had stated that three or four months before the date upon which he filed the written statement he had divorced his wife according to Mohomadan Law and it could be found that the husband had made a statement on oath on 12.1.1915 in the course of which he deposed that he had divorced his wife by repeating thrice “I divorce you”. The divorce as held by the learned Court below in mat case, could not be proved by the husband and the matter in dispute was practically in respect of certain properties on which divorce or not was the main question to be decided for inheritance of the property. It was held by the Court in that context that when there was a declaration on oath regarding his divorce by saying thrice “I divorce you” then assertion of the divorce should be construed from the date of filing of the show cause in the latest proceeding under Section 488, Criminal Procedure Code. So in that case formalities regarding divorce with regard to Mohomadan Law were being followed by making statement on oath regarding pronouncement of divorce thrice.
The fact of the case of Bombay High Court is totally different from the case in hand.
10. The Hyderabad case as referred to in the learned Single Judge’s judgment does not disclose the facts of that case as it was a very short judgment and practically controversy regarding two earlier judgments were considered and that it was held that divorce may be construed as a declaration from the date of filing of the written statement, even if the divorce on an earlier date as pleaded by the husband could not be proved by cogent evidence.
11. Now coming to the present case, first of all, let me discuss regarding different modes of Talak/Divorce under the Mohomadan Law. There are in total three modes of Talak namely :
(I) Talak ahsan-This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed abstinence from sexual intercourse for the period of iddat;
(II) Talak hasan-This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs.
(III) Talak-ul-bidaat or talak-i-bidai-This consists of three pronouncements made during a single tuhr either in one sentence, or a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage.
12. In the present case, it is stated that Talak was made by giving three oral de orations but at the time of such declaration the wife was in seven months’ pregnancy admittedly. So even if that divorce is said to be pronounced by the husband the same has got no legal validity in the eye of Mohomadan Personal Law. Moreover, it was stated that such divorce was referred to Mufti of Faizal Ulum, Dhatkidih, but according to the wife the Fatwa given by the Mufti was in her favour i.e. the divorce was not accepted to be valid. On the other hand, the husband wanted to show that Fatwa was in his favour on second reference being made to another Mufti but no such Fatwa had been produced. ,
13. From the legal implication and definition of three types of divorce as mentioned above in the Mohomadan Law, the divorce even if given had got no legal validity and when no divorce was there then the marriage definitely remained subsisting and as such both the learned Courts below held so. In all the three reported cases, there was no plea regarding legal validity of the divorce but only plea was that divorce as was pleaded could not be proved by cogent legal evidence, as discussed above and as such it was construed that such divorce can be held to be a declaration from the date of filing of the show cause in the maintenance proceedings.
14. Definitely, under the Mohomadan Law, some formalities are required for the purpose of divorce and those formalities if not completed, then that divorce become a nonest in the eye of law. The divorce as pleaded in the present case is completedly an illegal one and has got no legal anctity/approval and as such nonest and hence on plea of such illegal and invalid divorce the declaration made in the written statement cannot be construed as a divorce causing dissolution of the marriage from the date of declaration being made in the written statement. Nowhere the husband made it clear that atleast on that date he is making declaration of divorce or prior to that as mentioned in the Bombay case. There is also no such evidence from the side of the husband before the lower Court that atleast on the date of evidence he was pronouncing three Talaks and it that pronouncement had fallen within the period of two tuhrs then the same could have been construed as a declaration of divorce by the husband. Hence, in the present context of the case, I hold that on the basis of an illegal divorce which is nonest in the eye of law, the declaration being made in the written statement in the proceeding under Section 125, Criminal Procedure Code cannot be construed as a declaration of divorce from that date as no formalities required under the Mohomadan Law for Talak had been complied with. Hence on the first point, as raised by Mr. N.K. Prasad has got no force and I confirm the findings of both the learned Courts below that there was no divorce between the spouses either on 14.7.1985 or on the basis of that on the declaration being made in the written statement filed on 21.7.1986.
15. The further development of argument of Mr. N.K. Prasad regarding continuance of 125, Criminal Procedures Code after the divorce has been pronounced and that three months have been elapsed under the Muslim Women (Protection of Rights and Divorce) Act, 1986 is not worth discussion in view of the above findings on the first point. These are technicalities. Where in a proceeding under Section 125, Criminal Procedure Code if divorce is to be construed from the date of filing of the show cause then whether it should be considered as a petition under Sections 3(l)(a) and 4 of the Act or not without having any joint application being filed on consent or not, such consent, in my opinion, can be construed without any application also if the parties’ intentions are clear when they proceeded with the proceeding without any objection from any side.
16. These points have been decided by the Division Bench in the judgment as referred to in 1997 (1) PLJR 278 (supra). Some reliefs have been granted in the proceeding under Section 125, Criminal Procedure Code also construing the provision of Sections 3(1 )(a) and 4 of the Act.
It must be mentioned here that after the judgment of Sahbano’s case and promulgation of the new Act, which according to the Division Bench had not nullified the Sahbano judgment, much water had flown in the matter and regarding prolong vagrance of the Muslim women divorcee are always being taken with positive approach giving go-bye to the previous position of law by all Courts of this Country including the Supreme Court.
17. In the present case, the husband had not paid admittedly the Den Mohar within the Iddat period as such even if there was legally a divorce then also he cannot get the protection under the Act. He is bound to maintain if the wife does not get any other source for her maintenance as contemplated under the Act. The same might be in the form of a lumpsum payment as held by the Division Bench.
18. I am not going on that point much as it is not needed in the present context of the case as I have held that there was no divorce between the spouses either legally or by construance of legal provisions. Regarding the quantum of maintenance, nothing has been argued from the side of Mr. N.K. Prasad except the intention of the husband that he wanted to take back the two children in his custody and to get them maintained. If his intention would have been there, he could have taken steps in that light during the last one decade. So such intention as stated is nothing but an eye wash to get absolved from the liability of grant of maintenance.
19. This petition is thus dismissed having no force in it.