V. K. Jhanji, C.J. Acting

1. This Criminal Reference arises out of proceedings u/s 488 Cr. P. C. initiated by respondents before the learned Judicial Magistrate, Ist Class, Magam.

2. On 9th June, 2001, respondent No.1, Mst. Saja, filed an application u/s 488 Cr. P. C. before the learned Judicial Magistrate, seeking grant of maintenance allowance in her favour as being the legally wedded wife and three minor children, namely, respondents 2, 3 and 4, of petitioner, Manzoor Ahmad Khan, namely, the petitioner herein, on the ground of neglect and refusal to maintain. Upon notice, the petitioner herein, on 13th August, 2001, presented an application before the learned Magistrate. In that application, the petitioner stated that, on account of absence of his wife, mst. Saja, from his house, he was up-set and, therefore, made a "bona fide" offer to respondent No.1 to return to his society and live with him as his wife. In this behalf, he sought intervention of the learned Magistrate. Subsequently, on 23rd August, 2001, he filed his objections to the application for maintenance, wherein he stated that respondent No.1 had gone to her parental house with his permission for two weeks but did not return. He further stated therein that, till the filing of the application for maintenance, respondents 2 to 4 would occasionally come to his house and reside with him but, thereafter, respondent No.1 stopped them from coming to his home and even then he had been paying maintenance to them. The petitioner reiterated his offer made earlier in his application dated 13th August, 2001 and, in fact, in his objections the only prayer made was for a direction to respondent No.1 to resume conjugal relations with the petitioner. It may be relevant to mention here that Respondent No.1 filed her objections to the offer for restoration of conjugal relations made by the petitioner wherein she stated that, since the petitioner had contracted a second marriage, therefore, it was not possible for her to return to the society of the petitioner. That application was ultimately disposed of by the learned Magistrate by order dated 30.1.2002. It appears that on 13th February, 2002, the petitioner made an application before the learned Magistrate stating therein that respondent No.2, Arifa, (minor), was not his daughter but was adopted by Mst. Saja without his consent. Therefore, she was not entitled to any maintenance. Order dated 13th February, 2003 passed by the learned Magistrate, granting interim maintenance, shows that this objection was over-ruled by the learned Magistrate and the question of grant of interim maintenance was decided. In the main application, the parties led their respective oral evidence. In his statement recorded on 13th February, 2002, petitioner, inter alia, stated before the Court that he had divorced his wife, Mst. Saja. The learned Magistrate, vide order dated 28th December, 2002, recorded a finding that respondent No.2 herein, Arifa, had, in fact been adopted by both the petitioner as well as respondent No.1 and, therefore, she was entitled to maintenance. However, as regards respondent No.1, Mst. Saja, the learned Magistrate recorded that under Suni-law the divorce operates from the time it is pronounced whether or not the wife has the knowledge of the same. The learned Magistrate further recorded that the statement rendered by the petitioner on 13th February, 2002, wherein he stated that he had divorced his wife, Mst. Saja, was recorded by the court in presence of respondent No.1, Mst. Saja, therefore, she stood divorced and their marital relationship stood terminated from 13th February, 2002. The learned Magistrate, accordingly allowed the application in so far as it related to respondents 2 to 4 granting Rs.500/- each as maintenance in their favour. However, in regard to the respondent, Mst. Saja, the learned Magistrate directed the petitioner to pay monthly maintenance allowance of Rs.500/- to her from the date of application, i.e. 13th June, 2001(though the application is actually shown to have been presented before the court on 9th June, 2001) till the end of the period of Iddat which was determined by the learned Magistrate to be 23rd May, 2002. Aggrieved of the aforesaid order of the learned Magistrate, the petitioner filed a revision petition before the learned Sessions Judge, Budgam. During the course of arguments before the learned Sessions Judge, the learned counsel for the petitioner made a statement that he did not have any objection to the order of the learned Magistrate insofar as it related to respondents 3 and 4, but as regards respondent No. l and 2, i.e., the wife, Mst. Saja, and adopted daughter, Arifa, the submission made was that, since Mst. Saja was divorced, she was not entitled to any maintenance and similarly Arifa was not entitled to any maintenance as, according to him, she was adopted by Mst. Saja after dissolution of their marriage. The learned Sessions Judge in the Reference order, in relation to respondent No.2 has observed that, though she admittedly is not the natural child of the petitioner and respondent No.1 but because of the fact that she was adopted by them before the birth of respondents 3 and 4, when they had no child of their own, the said respondent is deemed to have been planted in the erstwhile family of the petitioner and respondent No.1 and enjoyed a status similar to that of respondents 2 and 4, therefore, she was entitled to maintenance, having severed her relations with a her natural family. As regards respondent No.1, the learned Sessions has observed that, being a divorcee, she was not entitled to maintenance and that, if she had any claim, she could take recourse to civil law only and not u/s 488 Cr. P. C. The learned Sessions Judge has, accordingly, made a Reference to this Court to the following effect:

"[T]hat while maintaining the impugned order insofar as it relates to respondents 2, 3 and 4, it be over-set in relation to respondent No.1 with liberty to her to agitate the matter in appropriate civil forum"

3. I have heard learned counsel for the parties and have carefully perused the record.

4. At the out-set it may be observed here that no exception can be taken to either the order of the learned Magistrate or the learned Sessions Judge insofar as respondents 2 to 4 are concerned. The liability of the petitioner to maintain them is absolute. The other part of the Reference made relates to a limited question, "whether a divorcee is entitled to maintenance during the period of Iddat" However, I feel that there is much more than that involved in the matter. Since the matter as a whole is before this Court in its revisionary jurisdiction, it merits consideration on the basis of the facts brought on record before the learned Magistrate and the law settled by the Apex Court.

5. Learned counsel for the respondents submitted that the petitioner during the course of his statement before the learned Magistrate stated that he had divorced respondent No.1 herein some time in the past. According to the learned counsel, the petitioner was required to prove this fact before the learned Magistrate by evidence, but he did not produce any evidence in this behalf, muchless a cogent one. Therefore, the statement of the petitioner by itself could not be taken as proof of the divorce, unless it was substantiated by evidence. The learned counsel argued that the learned Judicial Magistrate has committed an illegality in construing the statement of the petitioner before the court as a divorce pronounced on respondent No.1 in the court itself. He submitted that when a person claims to have pronounced talaq some time in the past, he is required to prove the factum of pronouncement of talaq, otherwise the statement has to be taken to be a handy device to wriggle out of the liability to provide maintenance to the wife. In this connection, the learned counsel has relied on the judgment of the Supreme Court in Shamim Ara v State of U. P. AIR 2002 SC 3551 . Secondly, Mr. Qayoom argued that a divorcee is entitled to maintenance during the period of Iddat. In this behalf, he cited and relied upon Mst. Fazi v Ali Mohd Pandoo ILR 1974 J&K 732. On the other hand, Mr. Dar, learned counsel for the petitioner submitted that under Hanfi Law when a person claims to have pronounced talaq on his wife, he is not required to prove the factum of talaq. It operates then and there.

6. Iddat is understood to be the term of probation incumbent upon a woman in consequence of the dissolution of marriage after carnal connection. It means the term by the completion of which a new marriage is rendered lawful. During this period a man is bound to provide maintenance to the divorcee. The point whether a divorcee is entitled to maintenance during the period of Iddat was considered by a Division Bench of this Court in Mst. Fazi v. Ali Mohd. Pandoo (supra) and the Division Bench held that if the Mohammedan Law confers a right of maintenance during the period of Iddat, then such a legal right can be enforced u/s 488 of the Code of Criminal Procedure during the period of Iddat. The relevant portion of the judgment may be quoted hereunder:

"In these circumstances therefore the short question for determination is when the talaq becomes irrevocable on 29.9.1970, whether the wife Mst. Fazi was entitled to maintenance at least for the period of Iddat, i.e., between 29.9.1970 and 29.12.1970. On this point Mr. Shah who argued this case with persuasive and ingenuity has submitted that the award of maintenance during Iddat is only a personal right of a wife available to her under the Mohammedan Law, and she can get this right only in a civil court. For the purpose of Section 488 Criminal. Proceedure Code the wife Mst. Fazi after being divorced would not be a wife in the eye of law and, therefore, Section 488 would have no application. We are, however, unable to agree with this contention. Section 488 of the Code of Criminal Procedure is not subordinate to any personal law but a general law on the subject which has to be regulated by personal law and the circumstances. If the Mohammedan Law confers a right of maintenance during the period of Iddat, then such a legal right can be enforced u/s 488 of the Code of Criminal Procedure during that period. Section 4(1)(d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 runs as under:-

`(d) in questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, casts or any religious usage or institution, the rule of decision is and shall be -

the Mohammedan Law in cases where the parties are Mohammedan

By force of Sri Pratap Jammu and Kashmir Laws Consolidation Act (1977) since the wife is entitled to maintenance during the period of Iddat after divorce has been made, the criminal court acting u/s 488 of the Code of Cr. Pr. becomes empowered to grant this maintenance during this limited period."

7. In view of the settled position of law, the point is no more res integra. A Muslim divorcee is entitled to maintenance during the period of Iddat.

8. As regards the statement made by the petitioner before the learned Magistrate that he had pronounced talaq some time in the past prior to the date of recording of the statement, I feel that this point is also covered by the judgment of the Apex Court in Shamim Ara v. State of U. P (supra). In that case the husband had taken a plea in the written statement of a divorce having been pronounced by him on a date some time in the past. Though the date of divorce was mentioned in the written-statement, the Apex Court was of the view that the pronouncement of talaq was required to be proved. The Supreme Court held as under:

"We are also of the opinion that the talaq to be effective has to be pronounced. The term `pronounce means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (). There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written-statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The husband ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written-statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit, filed in some previous judicial proceedings not inter party, containing a self serving statement of husband, could not have been read in evidence as relevant and of any value. Thus neither the marriage between the parties stands dissolved on 5.12.1990 nor does the liability of the husband to pay maintenance come to an end on that day. Husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law."

(Underlining supplied)

9. In view of the above, a plea of previous divorce during the course of proceedings cannot be relied upon unless the pronouncement of talaq is proved. Admittedly, in the present case, the pronouncement of talaq, somewhere in the past, was disclosed by the petitioner during the course of his statement made on 13.2.2002 before the learned Magistrate. I am clear in my mind that this statement did not amount to pronouncement of talaq "to the face of wife, respondent No.1". Therefore, the learned Magistrate committed a grave illegality in construing the statement of the petitioner made before the court on 13.2.2002 as pronouncement of talaq, operative from that date. The petitioner in his statement clearly stated that he had divorced his wife. Reference unambiguously was to some past act of the petitioner which he did not disclose. It was, therefore, for the court to examine the record whether the petitioner had really divorced his wife and whether he had succeeded in proving it before the court.

10. Examination of the record of the trial court reveals that the application for maintenance was filed before the learned Magistrate on 9th June, 2001. On 13th August, 2001, the petitioner filed an application making a "bona fide" offer to respondent No.1 to live with him and, in fact, a prayer was made to the court to intervene in the matter. Objections to the application for grant of maintenance were filed by him on 23rd August, 2001. In objections as well the petitioner expressed his desire to resume conjugal relations with respondent No.1. Neither in the application dated 13th August, 2001 nor in the objections dated 23rd August, 2001, the petitioner stated that he had divorced his wife, Mst. Saja. It was for the first time on 13.2.2002, when the petitioner appeared as his own witness that, during the course of his statement, he stated that he had divorced his wife, Mst. Saja. When, where, in what mode and in whose presence the talaq was pronounced, nothing was stated in the statement by the petitioner. Respondent No.1 appeared before the learned Magistrate as her own witness on 7.8.2002 in which, on cross-examination by counsel for the petitioner, she stated that she did not receive any talaq-nama from the petitioner either by post or otherwise. She categorically refuted to have been divorced. In defence, apart from his own statement, the petitioner examined only one witness, namely, Ghulam Muhammad Khan son of Aziz Khan resident of Gondipora. He happens to be the brother of the petitioner. His statement was recorded on 20.8.2002. He stated that petitioner had divorced Mst. Saja. In cross-examination, he stated that talaq-nama was written in the court by a petition writer somewhere in March or April, 2001. He was a witness to the talaq-nama. Who were other witnesses thereto, he did not know. The alleged talaq-nama was not produced before the court by the petitioner either along with his objections filed on 23rd August, 2001 or on the date petitioner tendered his statement. However, the trial court record reveals that on 20th August, 2002, the date the petitioners lone witness tendered his statement, petitioner filed an application seeking to place on record of the trial court a photocopy of the talaq-nama alleged to have been executed by him on 31.3.2001. Minutes of the trial court recorded on the main file on 20.8.2002 do not make a mention about the filing of this application or the photocopy of the alleged talaq-nama. However, there is a separate order recorded on the back of the application itself, making a mention of the filing of this application alongwith photocopy of the talaq-nama, copy whereof is shown to have been supplied to the opposite counsel; meaning thereby, that this application alongwith the photocopy of the alleged talaq-nama was presented before the court after the witness of the petitioner had been examined. After 20.8.2002, the case was posted for 5.9.2002 on which date the evidence of the petitioner was closed. No other witness was examined by the petitioner. Even the scribe of the talaq-nama was not examined. Petitioner himself did not make a mention of this talaq-nama at any stage even during the course of his statement. Talaq-nama was not put to any witness produced either by the petitioner or by Respondent No.1. Therefore, the execution of the talaq-nama was neither proved nor can it be said to have been proved.

11. Even if it be presumed that the petitioner had, in fact, got the talaq-nama written by some scribe, the question still remains whether he really intended to divorce his wife. Talaq is the conveyance of the intention of a man repudiating his wife. The intention of the petitioner is to be gathered from his conduct. The petitioner has not shown that the talaq-nama after having been got written, was, in fact, sent to the wife. Respondent No.1 has categorically refuted to have been divorced or having received any such talaq-nama. It was for the petitioner to prove that the talaq-nama was served on the wife. It is propounded that service of talaq-nama is not relevant. It is difficult to agree with such a proposition. Talaq can be pronounced by two ways (i) orally, by spoken words and (ii) by a written document called a tala-nama. When it is pronounced by a written document, i.e., talaq-nama, the object clearly is to communicate the expressed intention to the wife and, inter alia, to provide for the method and mode of payment of unpaid dower, if any, and maintenance for the period of Iddat, return of her property etc. When that is the mode of talaq chosen, service of talaq-nama constitutes an intrinsic evidence of the intention of the husband to repudiate his wife. Notwithstanding that, the conduct of the petitioner in the present case clearly demonstrates his intention to the contrary. Perusal of the photocopy of the alleged talaq-nama reveals that it is shown to have been executed on 31.3.2001. The application for maintenance was filed on 9.6.2001. The petitioner appeared before the learned Magistrate on 13.8.2001 and filed an application making a "bona fide" offer to respondent No.1 to return to his society and reside with him as his wife. He, in fact, sought the intervention of the court to achieve this object. Subsequently on 23.8.2001 he filed his objections to the application for maintenance. Strictly speaking, he did not object to the application for maintenance. He instead reiterated his desire and prayer made

12. in the application made on 13.8.2001. He, in fact, stated that he was up-set on account of absence of respondent No.1 from his home. In any case, not even a whisper was made about the pronouncement of talaq on respondent No.1 till the date of recording of his statement on 13.2.2002. If the petitioner had really divorced his wife on 31.3.2001, he would have taken that stand right from the very beginning. He instead sought courts intervention to ask respondent No.1 to return to his society. These offers made by him even after a period of 3 months and 23 days convey an unambiguous and clear intention that he had not divorced his wife on 31.3.2001. Therefore, there is a reasonable inference available to the Court that, if at all the talaq-nama was got written by the petitioner, the petitioner did not intend that what was written therein. Alternatively, it can be said that he revoked the talaq within the time allowed therefor. After having revoked it, he cannot invoke the same talaq-nama for repudiating the claim of his wife. Therefore, it will not be taken as pronouncement of talaq on respondent No.1. There is no evidence on record of the trial court that he pronounced talaq on respondent No.1 at any stage after the petitioner filed his objections on 23.8.2001 before the learned Magistrate.

13. It is thus seen that the factum of pronouncement of talaq is not proved. In fact, the intention of the petitioner to divorce his wife is lacking. In that view of the matter, there is all the weight in the submission of learned counsel for the respondent that the statement made by the petitioner that he had divorced his wife was a hand device to wriggle out of the liability to maintain his wife. An ancillary question that arises for consideration is whether divorce motivated by an attempt on the part of the husband to rebut his liability to maintain his wife would constitute a lawful pronouncement of talaq

14. The law on Talaq as ordained by Holy Quran is (i) that talaq must be for a reasonable cause and (ii) that must be preceded by an attempt of reconciliation between her husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. The issue has been subject matter of judicial scrutiny since long. In Shamim Ara v. State of U. P (supra), the Apex Court has relied upon and quoted the passages from various judgments of various High Courts which are eye openers for those who think that a Muslim man can divorce his wife merely at whim or on caprice. One of those illuminating judgments was recorded by Justice V. R. Krishna Iyer as Judge of the High Court of Kerala (as his lordship then was) in A. Yousuf Rawther Vs. Sowramma, . The Supreme Court, while relying on this judgment, has observed that it is virtually a research document. While commenting on the above judgment in A. Yousuf Rawther v. Sowramma, Tahir Mahmood in his book "The Muslim Law of India (third edition 2002 New Version), in Chapter 6 on "Divorce" has stated as under:

"1. Policy of Islamic Divorce Law:

Noting the view of some Muslim scholars that the Indo-Anglican judicial exposition of the Islamic law of divorce has not been just to its original texts, a learned Judge of India has observed that `indeed a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce.

This observation presents a correct, unbiased and authentic view of the Islamic law of divorce".

(Underlining supplied)

15. It would be apt to quote hereunder a passage from the above judgment in A. Yousuf Rawther v. Sowramma:

"It is a popular fallacy that a Muslim male enjoys, under the Quranic Law, unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. `If they (namely, women) obey you, then do not seek a way against them (Quran IV: 34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy, but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, `for the curse of God, said the (holy) Prophet, rests on him who repudiates his wife capriciously".

"After quoting from the Quran and the (holy) Prophet, Dr. Galwash concludes that `divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting reconciliation have failed, the parties may proceed to dissolution of the marriage by talaq or by Khola"

(Underlining supplied)

16. The Supreme Court in Shamim Ara v. State of U. P (supra) also relied upon and quoted two judgments of the Gauhati High Court in Sri Jiauddin Ahmed v. Mrs. Anwara Begum (1981)1 GLR 358 and Mst. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375. The relevant passage from the judgment of the Supreme Court is quoted hereunder:

"In Jiauddin Ahmeds case, a plea of previous divorce, i.e., the husband having divorced the wife on some lay much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq or the wife by the husband under the Muslim Law The learned Judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But inspite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. (para 6). Quoting in the judgment several Holy Quaranic versus and from commentaries thereon by well-recognised scholars of great eminence, the learned Judge expressed disapproval of the statement that `the whimsical and capricious divorce by the husband is good in law, though bad in theology and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters - one from the wifes family and the other from the husbands; if the attempts fail, talaq may be effected (para 13). In Rukia Khatuns case,as the Division Bench stated that the correct law of talaq, as ordained by Holy Quaran, is (i) that `talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, `talaq may be effected"

17. The above two judgments of Gauhati High Court were recorded by His Lordship Justice Baharul Islam (as his lordship then was); in the former, while sitting singly and in the latter speaking for the Division Bench.

18. In view of the clear and settled position of law on the subject, I am of the view that under the Muslim Law even a divorce motivated by an attempt to run away from the liability to maintain his wife would not constitute a ground for bringing to an end a sacred tie like marriage. I am of the view that the learned Magistrate committed an illegality in holding that Respondent No.1 stood divorced. Equally, the learned Sessions Judge, Budgam, committed an illegality in not only upholding that, but even recommending that a divorcee is not entitled to claim maintenance u/s 488 Cr. P. C. during the period of Iddat.

19. Accordingly, while upholding the orders of the learned Magistrate and the learned Sessions Judge insofar as they relate to respondents 2 to 4, it is held that neither the marriage between the parties stands dissolved nor does the liability of the petitioner to pay maintenance to respondent No.1 comes to an end on 13.2.2002. The petitioner shall continue to remain liable to pay the maintenance of Rs.500/- per month to respondent No.1 from the date of application, i.e. 9th June, 2001 until the obligation comes to an end in accordance with law.

20. Reference is answered accordingly. Registry to return the trial court records forthwith.