Msstt. Manjura Begum vs Abdullah Sekh

Manisana, J.—This revision petition arises from an order dated 12.2.88 of the Sessions Judge Nagaon made in CM Case No. 81 (N-2) of 1985 setting aside the order of maintenance u/s 125, CrPC passed by the Judicial Magistrate of the first class Morigaon on 7.5.85 in MR Case No. 34 of 1983.

Musstt Manjura Begum instituted a petition u/s 125 CrPC against Abdullah Sekh claiming maintenance at the rate of Rs. 300/- per month on the ground that Abdullah is her husband and he having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. She gave birth to female child during pendency of the case and claimed another sum of Rs. 300/- per month for the maintenance of the child. Abdullah contested the case stating, inter alia, that she is not his duly married wife. The trial Court has held that Manjura is legally married wife of Abdullah and ordered Abdullah to make a monthly allowance of Rs. 300/- for the maintenance of Manjura and Rs. 200/- for the maintenance of minor child. Being aggrieved by the order of the Magistrate, Abdullah filed a revision petition in the Court of the Sessions Judge. The Sessions Judge set aside the order on the ground that the Manjura has failed to prove the talaknama and therefore, she was not duly married to Abdullab and that the provision u/s 125, CrPC shall not apply to the present ease in view of the provision of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Hence this petition.

Talak may be oral or in writing, i.e. a talak may be effected orally (by spoken words) or by a written document called talaknama. But a talaknama may only be the record of the fact of an oral talak, or it may be the deed by which divorce is effected. Therefore, if the divorce is based on a talaknama by which the divorce is effected and the talaknama is not proved, it will have serious consequence. If the talaknama is only the record of fact of an oral talak. I am of the view that the case may be based on the original fact of oral talak because the oral talak has an independent cause of action, and the document called talaknama is an evidence of the oral talak.

Admittedly, Manjura was once married to another man named Abdul Hannan. Her case is that Abdul Hannan had divorced her and after the divorce she married Abdullah. A talaknama dated 14.12.77 (Ext-3) has been produced to prove the divorce. The learned Sessions Judge has held that the talaknama has not been proved in accordance with law. Since the documentary evidence of the alleged fact of divorce has not been proved, no oral evidence is admissible as an alternative, and, therefore, divorce has not been proved. Since the divorce has not been proved, the subsequent marriage of Manjura and Abdullah was illegal.

In the present case, the findings of the learned Sessions Judge indicates that there is oral evidence of the talak, but the oral evidence is inadmissible and he has not given finding as to whether there was an oral talak. The learned Sessions Judge has also not given the finding whether the child born to Manjura will be entitled to maintenance. For these reasons the findings of the learned Sessions Judge cannot be sustained.

Mr. A.S. Choudhury, the learned counsel for the respondent, has stated that there is no evidence about the income of Abdullah. The learned counsel for the petitioner has admitted that there is no evidence to show the income of Abdullah. If there is no evidence to that effect, it would be difficult to assess the quantum of maintenance.

Considering the facts and circumstances of the case, if the judgment of the Courts below are set aside and the case is sent back to the learned Magistrate for deciding the matter afresh, it will meet the ends of justice.

As regards the applicability of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the question is left open as the matter cannot be decided unless the dispute of divorce and/or marriage is decided.

For the foregoing reasons, the judgment and orders of the Courts below are set aside. The case is sent back to the learned Magistrate for disposal of the matter afresh. The parties may also be allowed to adduce further evidence.

This disposes of the petition.