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Judgment: Part 1

JUDGMENT: [Per Marlapalle, J.]:

1.The Petitioner was married to the Respondent No. 1 Rahimbi; and they begot three children from the said wedlock. However, the Respondent No. 1 approached the Judicial Magistrate, First Class at Latur by an application under section 125 of the Criminal Procedure Code for maintenance for herself and for the three children claiming that the Petitioner neglected her and the children after he married one Khamrunbee from whom also he begot children. He neglected the applicants and refused to maintain them during the last three years before she approached the learned Magistrate.

2.On receipt of summons, the Petitioner appeared before the Magistrate and filed a written statement opposing the claim made by the Applicants i.e. the present Respondent Nos. 1 to 4. He claimed that he had given Divorce (Talaq) to the Respondent No. 1 on 24th February, 1996 in the presence of Qazi and two witnesses and thereafter he had performed the second marriage with Khamrunbee. He also stated that one of the witnesses was a Muslim whereas the other one was a Hindu. He, therefore, prayed that the application filed under section 125 of the Criminal Procedure Code be dismissed. This plea was rejected by the learned 2nd Joint Judicial Magistrate First Class at Latur vide his judgment and order dated 21st November, 1998 and the maintenance application filed by the Respondent Nos. 1 to 4 came to be allowed. The learned Magistrate held that the fact of Talaq must be proved and it cannot be accepted by the Court merely on pleadings in the written statement. In this regard, the learned Magistrate relied upon a judgment of this Court [Single Judge] in the case of "Mehtabbi W/o Shaikh Sikandar V/s Shaikh Sikandar" [1995 (3) Bombay C.R. 433]. This order, passed by the learned Magistrate, has been impugned in the instant Petition.

3.When this petition came up for hearing alongwith Criminal Writ Petition No. 308 of 1999 before the learned Single Judge (Vagyani, J.) on 7th February, 2001 it was noted that a Division Bench of this Court [A.V.Savant & T.K.Chandrashekhara Dass,JJ.] in the case of "Jaitunbi Mubarak Shaikh V/s Mubarak Fakruddin Shaikh" [1993 (3) Mh.L.J. 964] had held that the view taken by the learned Single Judge in the case of Mehtabbi (supra) was not a good law and when a plea of Talaq is taken in the written statement filed before the Court, the wife is deemed to have been divorced from the date such a statement was made in the written statement though the husband takes the plea of Talaq on any date earlier to the filing of such a written statement and was not required to prove the factum of divorce by leading evidence before the Court.

4.However, it appears that another Single Bench of this Court at Nagpur had also made a reference to decide the controversy as arising in view of two different judgments of the Single Benches viz. "Chandbi Ex W/o Bandesha Mujawar V/s Bandesha S/o Balwant Mujawar" [AIR 1961 Bombay 121] on one hand and "Shaikh Mobin S/o Shaikh Chand V/s State of Maharashtra" [1996 (1) Mh.L.J. 810] on the other hand and, therefore, a reference came to be made to a Division Bench at Nagpur, in the case of "Saira Bano W/o Mohd. Aslam V/s Mohd. Aslam Ghulam Mustafa Khan" [1999 (3) Mh.L.J. 718] though similar reference was already answered by the Division Bench at Mumbai [A.V.Savant and T.K.Chandrashekhara Dass, JJ.) in the judgment dated 22nd April, 1999 the said opinion was not placed before the Nagpur Bench which decided the said reference [1999 (3) Mh.L.J. 718] on 28th September, 1999. The Division Bench at Nagpur [G.D.Patil and A.B.Palkar, JJ.), without referring to the view of the earlier Division Bench in Jaitunbi Mubaraks case (supra) held that the factum of divorce (Talaq) as stated in the written statement was required tobe proved and, therefore, the law laid down in the case of Mehtabbi (supra) and Shaikh Mobin (supra) was correct and the view taken in Chandbis case (supra) was erroneous. The learned Single Judge of this Bench (Vagyani, J.) noted the controversy between the views taken by two Division Benches in the case of Jaitunbi (supra) and Sairabanu (supra) and, therefore, directed the office to place the petition before the learned Chief Justice for His Lordships consideration to make a reference to the Full Bench to resolve the controversy. Accordingly, the learned Chief Justice was pleased to make a reference and constitute a Full Bench by order dated 15th March, 2002. This petition has thus been placed before us for answering the reference so as to settle the controversy.

5.In the case of Jaitunbi (supra) the wife had moved an application under section 125 of the Criminal Procedure Code and the maintenance amount came tobe fixed at Rs.60/- per month by order dated 26th June, June, 1981 passed by the learned Magistrate. Subsequently, the wife filed maintenance application No. 297 of 1986 under section 127 of the Code for enhancement of the maintenance amount. In reply to this application the husband filed his written statement on 1st November, 1987 and contended, inter alia, that he had already given Talaq to the claimant on 29th October, 1987 and, therefore, in view of the provisions of The Muslim Womens (Protection of Rights on Divorce) Act, 1986 the application filed in the Magistrates Court was not maintainable. The Division Bench framed four issues for consideration and the first two issues are relevant in deciding this reference and, therefore, they are reproduced, as under:

[i] In proceedings for maintenance instituted by a Muslim wife, if a Muslim husband takes a plea in his written statement that his marriage had been dissolved at an earlier date in the Talaq form, even assuming that the fact of such dissolution at an earlier date is not proved, whether the filing of the written statement containing such a plea of divorce in the Talaq form amounts to the dissolution of marriage under the Muslim Personal Law from the date on which such a statement was made.

[ii] Whether the law laid down by this Court in Chandbi Ex Wife of Bandesha Mujawar V/s Bandesha S/o Balwant Mujawar [AIR 1961 Bombay 121] still holds good or whether it requires reconsideration in view of the two contrary decisions of this Court in (a) Mehtabbi W/o Sk. Sikandar V/s Shaikh Sikandar S/o Sk. Mohd. reported in 1995 (3) BCR 433 and (b) Shaikh Mobin S/o Shaikh Chand V/s State of Maharashtra reported in 1996 (1) Mh.L.J. 810.

6.In reply to the first issue the Division Bench held that the pronouncement by a husband in his written statement that he has divorced his wife earlier though such a fact is not proved..... would operate as a divorce in the Talaq form at least from the date of filing of the written statement and such a contention made in the written statement would operate as an acknowledgment of a divorce by him and a declaration of divorce from the date on which the statement was made. In reply to the second issue the Division Bench held that the view taken in Chandbis case did not require reconsideration and the view taken subsequently in Mehtabbis case and Shaikh Mobins case was over ruled.

7.In the case of Sairabanu (supra) the application for maintenance under section 125 of the Code was allowed by the learned Judicial Magistrate First Class at Akot and, therefore, Criminal Revision Application No. 164 of 1995 was filed challenging the said order. While resisting wifes claim the husband made a statement in the witness box that he had divorced his wife and had sent Talaqnama to her by registered post which she refused to accept. The envelope containing the Talaqnama with the postal endorsement "refused" was produced before the learned Magistrate who found that the factum of the husbands having given divorce to the wife was not proved, the plea of divorce was not taken in the written statement by the husband but such a plea was taken for the first time by oral depositions in the witness box. The Division Bench at Nagpur framed the following five issues:

(1) Whether in case of parties governed by Mahomedan Law, it is sufficient for a husband to resist claim of his wife for maintenance beyond the period of Iddat merely by making an averment in the Written Statement or in any application filed in the Court contending that he has given her the divorce?

(2) Whether even without pleading divorce, the husband can resist successfully the claim of his wife for maintenance by making a statement in the witness box to the effect that he has divorced her?

(3) Whether such mere assertion either in the pleading or in the witness box amounts to an acknowledgment of divorce given earlier by the husband and he is not required to prove to have given divorce in accordance with Mahomedan Law sometime prior to date of such an assertion?

(4) Whether even otherwise such assertion either in the pleadings or in the witness box or in some application filed in Court by the husband by itself amounts to divorce in accordance with Mahomedan Law from the date of such assertion if not from an earlier date?

(5) Whether even if it is found that the statement regarding divorce given earlier is found to be false, still the statement in the Court proceedings can be taken as acknowledgment of divorce or even otherwise a fresh declaration of divorce?

The Division Bench held that (a) pleadings is formal allegation by the parties of their respective claims and defences to provide a notice of what is to be expected at the trial and proof is establishment of fact by leading evidence, (b) there is no authority to the proposition that mere allegation in the pleading by itself should be taken either tobe a proof of the fact alleged or even otherwise tobe independently as a declaration of existence of cessation of legal relationship between the parties; (c) pleadings in Courts of proceedings or any statement made in the witness box or in any application is for the purpose of making out a case of parties and evidence is led for supporting the case already pleaded; (d) the forum of judicial proceedings cannot be used for declaring existence or cessation of legal relationship between the parties and, therefore, mere contention in the written statement or in any application or in plaint by itself cannot be accepted tobe either an acknowledgment of divorce already given specially even without deciding upon the validity and legality of the earlier divorce. It can never be said mean a fresh declaration of divorce from the date of such assertion or even from the date stated in the proceedings; (e) the Court proceedings should be confined to the assertion of facts by parties and to the proof of facts so asserted or alleged and not for any other purpose specially for acknowledgment of declaration of divorce. The rights and interest of the parties cannot be jeopardized by a unilateral statement made during the course of proceedings by other party either orally or in writing.

The Division Bench, therefore, over ruled the view taken in Chandbis case (supra) and accepted the view taken in Mehtabbis case and Shaikh Mobins case (supra) as the correct law without referring to the view taken by the Division Bench in the Case of Jaitunbi (supra).

8.So as to assist us in resolving the controversy under reference we had appointed Shri Gulam Mustafa and Shri Khader as Amicus Curiae and Shri Khader argued for the Petitioner whereas Shri Gulam Mustafa opposed the Petition. Both the amicus curiae are well known for their scholarship in Muslim Personal Law and we have heard them at length in addition to the learned counsel for the respective parties.

9.The Mahomedan Law has mainly four different sources. The Holy Qur-an is the primary source and it represents the Gods will communicated to the Prophet through angel Gabriel. The second source is Ahadis and Sunni. It is claimed that after the death of Prophet the story of occurrences concerning the Prophet given by eye witness are known as Ahadis which means a tradition or precept and Sunnas is the practice of the Prophet. The third source is Ijmaa which consists of new problems faced after the death of Prophet and decisions thereon by the concerned jurists. The fourth source is Qiyas which, in brief, is a process of deduction by which law of text is applied to cases which though not covered by the language are covered by the reason of text which is technically called as Illiat or effective cause. There are three different schools of thought in regard to the Mahomedan society and those are Sunnis, Shias and Mustahids.

Posted on 2002-08-28

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