JUDGMENT
P.K. Tripathy, J.
1. This criminal revision had been preferred by the petitioner against the order dated 19.11.1997 in Misc. Case No. 50 of 1997 Under Section 125, Cr. P.C. of the Court of S.D.J.M., Bhadrak.
2. Petitioner claiming to be the legally married wife of the opposite party and alleging ill-treatment, cruelty and desertion and pleading about her incapacity to maintain herself filed the application Under Section 125, Cr. P.C. for monthly maintenance on the ground that opposite party has sufficient means to maintain her. In her application she stated that their marriage was solemnised on 26.4.1994, there was intermittent ill-treatment and cruelty and ultimately in May, 1996 she was compelled to leave the house of opposite party on account of ill-treatment and cruelty. She filed the application Under Section 125, Cr. P.C. on 21.3.1997.
3. Opposite party on receipt of show cause notice entered appearance on 8.5.1997 and filed his objection. In that objection denying to the date of marriage and the allegations of ill-treatment and cruelty, opposite party, however, admitted the marriage between the parties and stated that petitioner voluntarily deserted him on 1.6.1996 and in spite of several attempts made by him when she did not return, on 10.10.1996 he divorced her by uttering the word ‘Talak’ thrice in customary manner and that he had paid Mahr within one month after the dissolution of marriage and the Iddat was paid on 10.10.1996 and that the factum of divorce was intimated to the petitioner on 28.11. 1996. Accordingly, he pleaded that the application for maintenance Under Section 125, Cr. P.C. is not maintainable in view of lack of consent from the opposite party in accordance with the provision in Section 5 of the Muslim Women (Protection of Rights and Divorce) Act, 1986 (in short, ‘the Act’).
4. In her application petitioner had stated about birth of a male child after the marriage and on 25.6.1997 she filed an amendment petition to include the child as petitioner No. 2 for claiming maintenance on his behalf as the mother-guardian. Opposite party filed objection to that petition and stated that the minor child if so wants may file separate application for maintenance and he need not be added as a party in the present proceeding which has been made only with a view to continue the proceeding notwithstanding divorce of the petitioner on 10.10.1996. She also filed a formal objection denying the allegations of divorce and receipt of the Mahr, Iddat or communication relating to divorce.
5. The matter relating to maintainability of the proceeding Under Section 125, Cr. P.C. in view of the plea of divorce raised by the opposite party was heard along with the petition for amendment of the claim petition for including the minor child as petitioner No. 2 and learned S.D.J.M. vide the impugned order held the proceeding Under Section 125, to be not maintainable in view of the provision in Section 3(2) of the Act and in the absence of option Under Section 5. Learned S.D.J.M. also held that the child if at all wants to seek maintenance from the opposite party he can file separate petition for the purpose and accordingly rejected that petition for amendment. Consequently the maintenance proceeding was dropped.
6. Learned counsel for the petitioner argued that so far as the plea of divorce is concerned, there is a factual assertion made by opposite party and denied by the petitioner. Without conducting inquiry in that respect learned S.D.J.M. illegally accepted the assertion of the opposite party as the ‘Gospel Truth’ and illegally rejected the petition Under Section 125, Cr. P.C. In that context, learned counsel appearing for the opposite party argued that in view of the legal provisions in the personal law of the parties i.e. the Mohammedan Law the opposite party is in advantageous position in resisting to the claim for maintenance. Opposite party has sufficient proof to prove that the petitioner was divorced on 10.10.1996. If for any reason that is not accepted then also the factum of divorce has to be prima facie accepted as operative with effect from 8.5.1997 i.e. the date on which the written statement was filed. In that view of the matter, when the petitioner has become a divorced wife she cannot maintain a petition Under Section 125, Cr. P.C. without option being granted by the opposite party and so far that option is concerned opposite party does not agree for the same. Accordingly, learned counsel for the opposite party supported the impugned order relating to non-maintainability of the proceeding Under Section 125 Cr. P.C. and also relied upon the cases of Riswana Begum v. Mlv. Motiullah, 1989 (1) OLR 113; Rashida Khanum and Anr. v. Sk. Salim, (1995) 9 OCR 410 : and Begum Bibi and ors. v. Abdul Rajak Khan, 79 (1995) CLT 69.
7. Before dealing with the aforesaid contentions, for the sake of reference relevant provisions of law from the Act are taken note of. Section 2(a) defines the term divorced woman which reads :
2(a) ‘divorced woman’ means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim Law.” Section 3 prescribes for Mahr or other properties of Muslim woman to be given to her at the time of divorce.
Section 4 deals with the matter for order of payment of maintenance by the class of people as else by the Wakf Board, as the case may be. Section 5 of the Act provides for option which reads as follows:
“5. Option to be governed by the provisions of Sections 125 to 128 of the Act 2 of 1974 – if, on the date of the first hearing of the application under Sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (Act 2 of 1974), and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.”
Section 7 provides for transitional provisions which reads as hereunder :
“7. Transitional provisions. – Every application by a divorced woman under Section 125 or under 127 of the Code of Criminal Procedure, 1973 (Act 2 of 1974), pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act.”
8. In the case of Riswana Begum (supra) this Court held that : “It follows, therefore, that application for maintenance by a divorced Muslim woman must be initiated under Sub-section (2) of Section 3 of the Act and then only choice should be exercised in the manner and on the date stated above so that the proceeding should continue Under Sections 125 to 128 of the Criminal Procedure Code. In this view of the matter, so far as divorced muslim woman is concerned. Sec. 125 of the Criminal Procedure Code would apply only if both parties exercise their option at the first hearing of the application under Sub-section (2) of the Act as contemplated Under Section 5 of the Act and not in any other manner.” (Underlining by this Court to supply emphasis) In the case of Rashida Khanum (supra) this Court held that :
“Provisions of Sec. 125 of the Code, would be applicable to the case of divorced Muslim woman only if both parties exercise their options at the first hearing of the application Under Section 3(2) of the Act, and not in any other case. Therefore, the learned Judge, Family Court was justified in holding that provisions of Sec. 125 have no application and the application has rightly been treated as one Under Section 3 of the Act.”
In the case of Begum Bibi (supra) a similar view as quoted above has been taken by this Court.
9. It is clear from the provision of law and principle highlighted in the above stated decisions that a divorced Muslim woman cannot resort to a proceeding Under Section 125, Cr. P.C. and cannot maintain the same unless she has taken the remedial steps and passed out the legal hurdles as provided under Sections 3 and 5 of the said Act. Definition of the term divorced woman goes to clearly show that there must be a divorce in accordance with the Muslim law. Therefore, the question of marriage and or the factum of divorce is essentially a question of fact. According to the authorities like Mulla plea of divorce from a particular date as reflected in the written statement, if not accepted for any valid reason, then it must be held to be effective from the date of filing of the written statement because the intention of giving Talak is clearly stated and communicated to the wife through such written statement. Therefore, in a case where the wife claims continuance of the status and the husband claims dissolution of the status by divorce that issue shall be subject matter of enquiry in the proceeding to record a finding as to whether there was such divorce or not. So far as to take a prima facie view the date of divorce can be prima facie accepted from the date of filing of the written statement and not from any previous date if the same is not admitted. Therefore, in the present case, learned S.D.J.M. has completely gone wrong in accepting the plea of divorce (asserted by the opposite party) with effect from 10.10.1996. Petitioner in her counter has specifically denied to the allegation of she being divorced by opposite party or any Mahr, Iddat etc. being paid to her and relating to the communication of such divorce to her by the opposite party. Under such circumstances, a prima facie view cannot be taken, without the proof of the factum of divorce by the party alleging the same that on 10.10.11996 the divorce was effected and completed. Apart from that, the matter relating to payment of Mahr and Iddat are associated for completion of the factum of Talak. At the best, at the risk of repetition, it may be stated that, the plea of divorce is prima facie acceptable with effect from 8.5.1997 by which date the application Under Section 125, Cr. P.C. was already in record. To put it in a different manner it is found that in view of the rival stand of the parties there is no admissible evidence available in the record to record a finding that by the date of filing of the application Under Section 125, petitioner was a divorced wife. Under such circumstances, she was neither required to comply with the provisions in Sections 3 or 5 of the Act. During the course of hearing relating to issue of maintainability of the petition under Section 125 if it will be proved by the opposite party about the divorce with effect from 10.10.1996, naturally, the petitioner shall not be entitled to maintenance under Section 125, Cr. P.C. in view of lack of option Under Section 5 of the Act obtained from the opposite party. But before that stage could come learned S.D.J.M. under a misconception of law jumped to the conclusion about non-maintainability of the petition. Therefore, that part of the order is illegal and not sustainable.
10. So far as the petition for amendment is concerned, contention of the learned counsel for the petitioner regarding unreasonable approach of learned S.D.J.M. in rejecting such petition on the ground that a fresh application should be filed was not convincingly countered by the learned counsel appearing for the opposite party though he tried to advance the argument in the line of the reasoning assigned by the learned S.D.J.M. In that context it may be mentioned that learned S.D.J.M. completely ignoring the principle and the object behind the provision Under Section 125 regarding grant of protection to the destitute and to save them from vagrancy, rejected the petition on flimsy ground. When the status of the minor child is not at dispute and he is entitled to maintenance Under Section 125, Cr. P.C. notwithstanding the provisions in the Act and when he is in the custody of the mother-guardian learned S.D.J.M. should not have asked the petitioner to file another application for her minor child. Whether or not the prayer for maintenance of the petitioner Under Section 125 is acceptable (that depends upon the proof or disproof of the factum of divorce) at the same time the claim of maintenance of the minor child should be considered so as to expedite remedy to a minor child who has no source of income to sustain his livelihood. Therefore, there is no logic and reasonableness available in support of the impugned order in rejecting the amendment petition. Under such circumstances, that part of the order is also found to be illegal and unsustainable and accordingly set aside.
11. In the result, the impugned order is set aside, the proceeding is to be taken up in accordance with law and the question of maintainability of the proceeding may be properly appreciated on the basis of the evidence, if tendered, relating to the factum of divorce and the petition for amendment be allowed and in that respect if the opposite party would like to file any additional counter/show cause, opportunity may be afforded to him in that respect. Since this is a proceeding relating to maintenance learned S.D.J.M. shall take up the matter expeditiously and shall dispose of the same as far as practicable, within a period of three months from the date of receipt of a copy of this order along with L.C.R. Registry is directed to send back the L.C.R. forthwith and preferably within a week.
12. For the foregoing reasons the impugned order is set aside and the criminal revision is allowed. Revision allowed.
S.C. Dutta, J.
13. I agree.
