Decided on December 06,1954



- (1.) THESE are two revision petitions Nos. 250 and 256/6/1954. The Munsif Court, Armoor, by order dated 3-12-1953, directed that the petitioner No. 3, Noor Jehan Begum, should be given a maintenance allowance of Rs. 20/- per month and petitioner No. 1, Niamat Bi alias Ahmed Bi and petitioner No. 2, Moinuddin, are not entitled to any maintenance. Hence these revision petitions, one by Niamat Bi and Moinuddin, and another by the husband, Shamsuddin. They were first heard by a Single Bench of this Court which has by order dated 25-6-1954, referred the whole case to a Division Bench. We have perused the order of reference and heard the arguments of the learned advocates of the parties.
(2.) IT is admitted that the husband Shamsuddin divorced his wife, Ahmed Bi, on 6-7-1952, and the petition for maintenance was filed after 5 days of this on the 12th. His learned advocate, Shri Abdul Khair Siddiki, therefore, argued that as the jurisdiction of the Court Under Section 488 depends upon proof or admission of marriage between the parties and its continuance at the time of filing of the petition for maintenance, there was no jurisdiction in the court for passing any order of maintenance and hence the petition of the wife was rightly rejected. The question for consideration, therefore, is whether as soon as a Taluq is pronounced, the marriage tie is totally broken and no incidence of marriage continues thereafter. The reference is also on this point Only. Reliance is placed in the order of reference on 'abdul Khader v. Azeeza Bee' AIR 1944 Mad 227 (A), where it has been held that divorce takes effect from the date on which the wife learns about it, and, therefore, liability to maintain her continues till then. The Hanafi Law is, however, clear on this point that for a valid pronouncement of divorce the presence of wife is not necessary and it can validly be given in her absence. The Patawa-e-Osmania, p. 134 and Tyabji on Mohammadan Law, p. 224 (3rd Edn.) may be referred to in this connection. It would, therefore, appear that there Is no authority in the texts of Muslim Law for the proposition that a divorce takes effect from the time when the divorced wife comes to know about it. The divorce in this case was given without any strings attached to it on 6th July. The parties are said to be of Hanafi persuasion and, therefore, it took effect on that date alone.
(3.) THE further question, however, remains, whether with the divorce, the liability for maintenance of the divorced wife also comes to an end. This is the contention of the learned advocate of the husband. No doubt, the 'sine qua Qon' of jurisdiction of a Magistrate Under Section 488 is the proof and admission of marriage. But the tactum of marriage is to be determined according the personal law. In this case, as the parties are Muslims, Muslim Law will apply. We have, therefore, to see whether in Muslim Law any incidence of marriage, especially in respect of maintenance of the divorced wife, continues after divorce or not. The answer to this appears to be in the affirmative. In Muslim Law, the wife does not become a free agent and is not competent to contract a second marriage till full 3 months if the marriage is dissolved by divorce inter vivos, and 4 months 10 days if the marriage is dissolved by death of the husband. This is called the period of Iddat. Because of this incapacity for a second marriage, the wife is given a right to maintenance for the period. Hence, on principle, when the factum of marriage is left for determination in accordance with the personal law, this incident of that law should also be taken into account. A Division Bench of this Court in 33 Deccan LR 134 (B) held that owing to various incidences, the marriage tie itself should be deemed to have been extended for the period of Iddat. In another case of this Court also, viz. , in 'wahab Ali v. Qamra Bi' AIR 1951 Hyd 117 (C) maintenance for the period of Iddat was decreed. We are, therefore, clear that the order refusing the wife maintenance for the period of Iddat, i. e. , for a period of three months from the date of divorce, 6-7-1952, was not correct and It is set aside. The revision petition on this point is allowed and we direct that Ahmed Bi be given maintenance for three months at the rate of Rs. 20 per month.;

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