Mursleem vs Smt. Bhoori and Another

M.C. Jain, J.—The revisionist is the husband and has challenged the judgment and order dated 11.11.1997 passed by Sri Chandra Bhan, Judge Family Court, Meerut in Criminal Case No. 104 of 1996 whereby he has allowed the application of the revisionist''s wife-Respondent u/s 125, Code of Criminal Procedure granting maintenance allowance to her at the rate of Rs. 200 per month with effect from 27.2.96 and at the rate of Rs. 300 per month to their minor son.

I have heard learned Counsel for the revisionist and learned Counsel for the Respondent.

The application u/s 125, Code of Criminal Procedure was made by the Respondent on 27.2.96 alleging that her husband (revisionist) was demanding Rs. 10,000, T.V., Freeze and Cooler and on non-fulfillment of this demand, he turned her out of his house along with their minor son. She did not have any means of livelihood and was living with her old and aged father with her son in compelling circumstances. Her father was not at all in a position to maintain her. The revisionist is said to be earning at the rate of Rs. 3,000 per month by working as Conductor on a Bus and had also 15 bighas land earning Rs. 4,000 per month thereby. She demanded Rs. 500 per month as maintenance allowance for herself and Rs. 500 per month for her minor son.

It has been argued by the learned Counsel for the revisionist that he had divorced the Respondent. Such written statement was filed by him before the lower court on 11.7.96. The submission of the learned Counsel for the revisionist is that the Respondent could not be entitled to receive any maintenance allowance from him beyond the period of Iddat. On the other hand, argument from the side of Respondent (wife) is that the factum of divorce had not been proved before the lower court and as such, the revisionist could not avoid the liability of maintenance to her. From the side of Respondent, reliance has been placed on the case of Zeenat Fatema Rashid v. Md. Iqbal Anwar 1 (1992) DMC 49 Gauhati High Court, wherein it was held that the divorce was required to be proved and plea raised in this behalf in the written statement could not be relied upon without proof of the divorce. The submission of the learned Counsel for the revisionist is that it has been held by this Court in the case of Abdul Shakoor Vs. Smt. Kulsum Bibi and Others, , that where in a proceeding for maintenance allowance by a wife, the husband in his written statement clearly mentioned that he had divorced his wife earlier, then the husband would be deemed to divorce his wife on the date when the written statement was filed and, therefore, wife could be entitled to maintenance only for the Iddat period commencing from the date of written statement.

On consideration of the matter, I am of the opinion that Zeenat Fatema Rashid''s case referred to supra relied upon by the learned Counsel for the Respondent would not come to the rescue of the wife in the face of direct pronouncement of this Court in Abdul Shakoor''s case referred to above. Abdul Shakoor''s case was subsequently followed by this Court in another case of Chunnoo Khan v. State 1967 CriLJ 166. Of course, in the written statement the husband did not disclose any date of divorce, but he clearly averred the factum of divorce in the written statement filed on 11.7.96 and he would be deemed to divorce Respondent on the day of filing written statement. It means that, in any case, he divorced his wife on the date when the written statement was filed.

Therefore, the Respondent (wife) is entitled to maintenance allowance from the revisionist only for the period of Iddat. viz. three months starting from 11.7.96 on which date the husband had filed written statement raising the plea of divorce. However, the revisionist is liable to maintain his minor son born from the Respondent.

In the result, the revisionist shall pay maintenance allowance to his wife Smt. Bhoori at the rate of Rs. 200 per month for a period of three months with effect from 11.7.96. He shall further be liable to pay maintenance allowance to her for maintenance of his minor son at the rate of Rs. 300 per month with effect from 27.2.96 (the date on which application for maintenance allowance was made in the lower court). The revision stands decided accordingly. The judgment and order under revision are modified accordingly.