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Judgment
T.P. Sharma, J.—This revision is directed against the order dated 22.8.2007 passed by II Additional Principal Judge Family Court, Raipur in Case No. 249/06. whereby the application filed by non-applicants u/s 125 of the Code of Criminal Procedure (hereinafter referred to as, ''the Code'') was allowed.
The question for decision of the present revision petition is that whether divorce has effected between applicant and non-applicant No 1 and in consequent to the divorce non-applicant No. 1 is not entitled for maintenance in accordance with the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ''the Act, 1986'').
Non-applicant No. 1 was married with applicant. Non-applicant No. 2 is a daughter of applicant and non-applicant No. 1. The application u/s 125 of the Code for maintenance was filed on behalf of non-applicants. In reply filed on behalf of the applicant before the learned II Additional Principal Judge, Family Court, Raipur. It was objected that marriage of the parties had come to an end by the divorce and non-applicant No. 1 is not entitled for any maintenance. After giving an opportunity of hearing, the Trial Court after holding that no Talak in divorce is effected, has awarded maintenance of Rs. 1,500 to non-applicant No. 1 and Rs. 1,000 to non-applicant No. 2.
Counsel for the parties heard.
Order impugned and record of the Trial Court perused.
It is submitted on behalf of the applicant that applicant and non-applicant No. 1 were husband and wife and applicant has divorced the non-applicant No 1. Amount of Dower and maintenance required during the period of Iddat has been paid to non-applicant No. 1 and she has received the amount after effecting the divorce. Non-applicant No. 1 is not entitled for any maintenance u/s 125 of the Code in accordance with the provisions of Section 3 of the Act, 1986. Second Additional Principal Judge, Family Court, Raipur by not taking into consideration the factum of divorce and reached the conclusion that the said Talak was sent through registered post and condition required in the case of Zahirunnisa v. Wahab Mohammed 2005 (5) M.P.H.T. 31 (C.G.) has not been fulfilled by applicant, therefore, divorce has not been effected between the parties and awarded maintenance of Rs. 1,500 to non-applicant No. 1 and Rs. 1,000 to non-applicant No, 2.
The order of the Trial Court is supported on behalf of non-applicants and submitted that the alleged divorce was sent by registered post. No effort has been made for reconciliation.
The applicant has pleaded in his reply that he has divorced the non-applicant No. 1 and she is not entitled for any maintenance. He has also stated that the divorce has been sent by registered post to non-applicant No. 1.
Non-applicant No. 1 Shabana Ali has admitted in paragraph 5 of the statement that she had received Talaknama. She has also received the amount of Mehar and the amount of maintenance for the period of Iddat and she has utilized the amount. Her father PW2 Salimmullah Khan has also admitted that they have received Talaknama and also received the amount of Mehar and the amount of maintenance for the period of Iddat.
Reliance is placed on behalf of the non-applicants on decision of this Court in the matter of Zahirunnisa v. Wahab Mohammed 2005 (2) C.G.L.J. 223. In the case of Zahirunnisa (supra), it has been held that reasons for divorce and efforts of reconciliation are required in case of Talak. Only the divorce communicated by registered post is not sufficient for divorce.
In the instant case, both the parties are governed by Muslim Law. The Act, 1986 is applicable to the parties. In case of Muslim divorced woman, husband is not liable for maintenance after a period of Iddat in accordance with the provisions of Section 4 of the Act, 1986. Section 4 of the Act, 1986 reads as under:
Section 4. Order for payment of maintenance-(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order:
Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relative as mentioned in Sub-section (1) or such relatives or anyone of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives under the second proviso to Sub-section (1), the Magistrate may, by order, direct the State Wakf Board established u/s 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under Sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.
In the instant case, Talaknama had been received by non-applicant No. 1. She has also received the amount of Mehar (Dower) and the amount of maintenance for the period of Iddat.
As regards the stage of reconciliation, applicant has stated that he has tried to reconcile, but the same was not possible, then he divonrced the non-applicant No. 1. Non-applicant No. 1 has received Talaknama and also the amount of Mehar and the amount of maintenance for the period of Iddat. She had also utilized the money. Nothing has remained for completion of Talak (divorce). Non-applicant is a divorcee woman. She is not entitled for maintenance from her husband and husband is not liable for maintenance in accordance with the provisions of Section 4 of the Act, 1986.
The learned II Additional Principal Judge, Family Court, Raipur has not considered the factum of Talaknama, payment, receipt and utilization of Mehar and amount of maintenance for the period of Iddat and reached into wrong conclusion that applicant has not divorced the non-applicant No. 1.
The finding of the Trial Court relating to the non-existence of Talak suffers from illegality and is not sustainable.
Consequently, the revision is partly allowed and the order impugned is modified and maintenance awarded to the non-applicant No. 1 (applicant No. 1 in original petition) is set aside.