{"id":247395,"date":"1969-08-19T00:00:00","date_gmt":"1969-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammad-ali-vs-fareedunnisa-begam-and-anr-on-19-august-1969"},"modified":"2016-06-13T18:31:33","modified_gmt":"2016-06-13T13:01:33","slug":"mohammad-ali-vs-fareedunnisa-begam-and-anr-on-19-august-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammad-ali-vs-fareedunnisa-begam-and-anr-on-19-august-1969","title":{"rendered":"Mohammad Ali vs Fareedunnisa Begam And Anr. on 19 August, 1969"},"content":{"rendered":"<div class=\"docsource_main\">Andhra High Court<\/div>\n<div class=\"doc_title\">Mohammad Ali vs Fareedunnisa Begam And Anr. on 19 August, 1969<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 1970 AP 298<\/div>\n<div class=\"doc_bench\">Bench: O Reddi<\/div>\n<p id=\"p_1\">JUDGMENT<\/p>\n<p id=\"p_1\"> 1. The main question that arises for consideration in this Second  appeal is whether in fact the 1st  plaintiff was divorced  by her husband as   alleged by him in his notices Ex.  A.  3  dated 12-5-1960  addressed to  Sri  Md. Osman and Ex.  A.  6  dated  16-7-1960  addressed to Sri  Abdul  Waheed Ovasi.\n<\/p>\n<p id=\"p_2\">       2.     To  appreciate the point involved,  whether the divorce of the 1st  plaintiff by her husband the defendant takes  effect from the date of the notice at  least,  in view of the denial  by the wife  (1st  plaintiff)  that she was never divorced  as alleged in the notices on the night of  the Nikah,  it is necessary to state the  relevant facts.   The  1st plaintiff was  married to the defendant (appellant) on  17-5-50  and the prompt dower  fixed at  Rs.  50\/-  was paid then and  there at the  time of the marriage.  It is her case that   her husband consummated the marriage and that a son  (2nd  plaintiff)  was born  to them  on  31-3-60  and that subsequently the defendant neglected her and their  son and refused to maintain them and then came forward with a false story in the notices issued by him that he had divorced her on the very day of Nikah  in order to avoid the liability to maintain her and their son.\n<\/p>\n<p id=\"p_3\">       3.    In this appeal were are not concerned with the claim of  Rs.  2,  500\/-  the value of a house and the value of  5  tolas of gold,  as that formed the subject matter  of another appeal before the lower Appellate Court in  A.  S.  No.  67\/60.  This Appeal  (S.  A.  No.  578\/64)  is preferred by the defendant as the Court below confirmed the decree of the trial court in respect of the maintenance claims of the two plaintiffs.  The defendant resisted  the action for maintenance on the ground that Talak  was pronounced on  17  the May  1950 itself,  the  day of  Nikah  and that he  had absolutely no conjugal  relationship  with her so as to entitle her and the  2nd  plaintiff born to her to demand maintenance form him.   Negativing the contention of the defendant that he had divorced his wife on the day of Nikah  itself  and that the second plaintiff was  not born out of his loins,  the lower appellate Court confirmed the decree of the trial  Court granting maintenance at the  rate of  Rs.  30\/-  per month to the 1st  plaintiff and  Rs.  10\/-  per month to the 2nd  plaintiff.\n<\/p>\n<p id=\"p_4\">        4.      Mr. Jahangir  Ali,  learned counsel for the appellant contended that the courts below  have ignored the accepted principles of  Muhammadan  Law in holding that the notice served by the defendant does not operate as declaration of  divorce by the husband from the date of the notice of his wife and as such the decree under appeal is liable to be set aside.   The 1st plaintiff significantly enough in her plaint averred that when   she demanded maintenance from  her  husband he sent her a notice on  12 the  May  1960  (Ex.  A.  3)  with  an  &#8216;incorrect statement,  that she has been divorced on the date of the marriage itself.  So   far as   the defence of  the defendant that he had divorced his wife on  17-5-50,  the date of Nikah  is concerned,  the Courts below  have not chosen to rely on the evidence  placed by him and accepted the plea of   the plaintiff that she was never divorced   on the day  of marriage as alleged by her  husband and for the firs time the story   of divorce was trotted out in the notice.  Ex.  A.  3  dated  12th  May  1960.   The  defendant,  it may be noticed,  followed it  up by issuing another notice  (Ex.  A.  6)  dated  16-7-1960  reiterating his stand that  he had divorced his wife on  17th May,  1950  itself.   Since the courts below have  concurrently held on the evidence on  record,  that the defendant did not divorce his wife as contended by him  on  17-5-50.  I am unable to interfere with this finding of fact.  But  the main question  remains whether the divorce would take  effect from  the date of notice although    there is the denial  by the wife that she  has been divorced as alleged in the notice on  17th  May,  1950  and the subsequent notice.\n<\/p>\n<p id=\"p_5\">        5.      A  Division Bench of the Allahabad High Court in <a href=\"\/doc\/969021\/\" id=\"a_1\">Asmat  Ullah  v.  Mt.  Khatun  Unnissa, Air<\/a>  1939  All  592  in a somewhat similar case heaving regard to what is stated in Machaghten&#8217;s  Principles  and  precedents of  Muhammadan  Law  (1890)  Edn,  at  page   296,  held that where a husband says that he has  divorced his wife  and the wife denies that she has been divorced,  the divorce should be held to take effect form the date on which the statement was made.\n<\/p>\n<p id=\"p_6\">         6.      In   a maintenance proceeding under<a href=\"\/doc\/445276\/\" id=\"a_1\"> S.  488<\/a>  Cr.  P.  C.  initiated by a Mahomedan  Wife against her husband,  where the husband in the counter pleaded divorce,  it was  held by Sruyanarayana  Rao,  J.   in  Wahab  ali  v.  Qamro  Bi, AIR  1951  Hyd.    117  that if the court comes to the conclusion that the divorce pleaded is not proved such a statement in the written statement does operate as an expression of divorce by the husband and comes into  effect from that moment.\n<\/p>\n<p id=\"p_7\">         7.     Shah,  J.  in Chand  CI  v.  Bandesha,  where to an application for maintenance under S.   488  Cr.  P.  c.  by a Mahomedan  wife,  the husband filed written statement contending that he had already divorced his wife about  30  years ago,  held  that even  though such a statement of divorced is not proved,  it still operates as declaration of divorce  as form the date of written  statement and the wife thereafter will be only entitled  to maintenance for the period of Iddat  I.  e.  3  lunar months form the date of the written  statement.\n<\/p>\n<p id=\"p_8\">        8.    To a similar effect is the view expressed by  Mulla,  J. in  <a href=\"\/doc\/202166\/\" id=\"a_2\">Abdul  Shakoor  v.  Smt  Kulsum  Bibi<\/a>,  (1962)  1  Cri  LJ  247  (All).\n<\/p>\n<p id=\"p_9\">       9.      It is thus manifest that the Mahomedan  law confers specials  right on the husband and favours  the husband  more than the wife giving liberty to the husband not only to divorce the wife orally  in the manner provided for under the Mahomedan Law,  but also issue a notice  or file a written statement in defence  to a maintenance  claim and where such a statement in writing is made that he had   divorced his wife in the past long  prior  to the action brought by the wife,  the  statement of divorce made either by a  notice or in a written statement itself   amounts to a declaration of divorce as on  that date,  in which the said statement was made.  When the Muhammadan  Law   permits such a course of action putting the husband in a privileged  position and favours him with a special  right in the matter of divorce which right or privilege is denied to his spouse,  effect shall be given  to it without imparting notions of discrimination or the divorce laws applicable  to Hindus  or  Christians.  Therefore,  the claim of the wife for maintenance has been wrongly upheld by the Courts  below contrary to the principles   of Muhammadan  Law and the decree in so far as  it relates to the maintenance granted to  the 1st  plaintiff has necessarily to be  set  aside.  She will,  however he entitled to  maintenance at the rate determined by the Courts below for the 3  on the  period of Idddat form the date of the first notice  i.e.  12-5-60.\n<\/p>\n<p id=\"p_10\">         10.   So far as the maintenance awarded by the  Court below to the 2nd  plaintiff is concerned,  it has to be borne in mind that he was born  on  31-3-60  and  the notice Ex. A.  3  was issued  subsequently on  12-5-60.  As  already observed  the Courts below have rejected the story of the defendant that the 2nd  plaintiff was not born out of his loins and therefore the maintenance awarded to him shall stand.\n<\/p>\n<p id=\"p_11\">        11.    Mr.  Bhaskara  Rao  appearing for the respondent contended that the  1st  plaintiff would be entitled to past maintenance i.e.,  for the period prior to the date of  Ex.  A.  3  and to that extent at least  the decree of the Court below relating to the maintenance awarded to her must be confirmed.  It is no doubt true that the husband is bound to maintain his wife so long as she is faithful to him  and obeys his reasonable orders,  but nevertheless she will  not be entitled to past maintenance unless the claim is based on a specific agreement (See Abdool  Futteh  v. Zabunnessa,  (1881) ILR  6  Cal  631).\n<\/p>\n<p id=\"p_12\">        12.     In the result,  the appeal preferred by the defendant to the extent indicated above is allowed and is dismissed in other respects.   The parties will bear their own  costs.\n<\/p>\n<p id=\"p_13\"> 13. Appeal partly allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Andhra High Court Mohammad Ali vs Fareedunnisa Begam And Anr. on 19 August, 1969 Equivalent citations: AIR 1970 AP 298 Bench: O Reddi JUDGMENT 1. The main question that arises for consideration in this Second appeal is whether in fact the 1st plaintiff was divorced by her husband as alleged by him in his notices [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-247395","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Mohammad Ali vs Fareedunnisa Begam And Anr. on 19 August, 1969 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammad-ali-vs-fareedunnisa-begam-and-anr-on-19-august-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammad Ali vs Fareedunnisa Begam And Anr. on 19 August, 1969 - Free Judgements of Supreme Court &amp; 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