- (1.) K. N. Ojha, J. Instant revision has been preferred against judgment and order dated 2-2-2001 passed by Principal Judge, Family Court, Varanasi, in Case No. 238 of 2000, Smt. Shakiba Khatoon and one other v. Darvez Ahmad, by which the application moved by the wife Smt. Shakiba Khatoon under Section 125 Cr. P. C. for maintenance was rejected but it was allowed in favour of minor daughter Kumari Najish Parveen alias Arsi and the opposite party No. 2, Darvez Ahmad was directed to make payment of maintenance allowance to the minor daughter at the rate of Rs. 200 per month.
(2.) HEARD Sri Naushad Siddiqui, holding brief of Sri R. V. Pandey, learned Counsel for the revisionist, learned AGA and Sri Awadhesh Rai, learned Counsel for the opposite party No. 2 and have gone through the record. A perusal of the impugned order shows that the learned Principal Judge, Family Court, Varanasi, relied on the pronouncement made by this Court in 1992 JIC 784 (All), Smt. Safia Khatoon v. Kaushar Ali and others, in which it was held that if divorce was pleaded in written statement, it amounts to an expression of divorce and operates from that moment. When the case for maintenance was filed under Section 125 Cr. P. C. by Shakiba Khatoon, revisionist, against her husband Darvez Ahmad, Darvez Ahmad filed written statement and admitted that Smt. Shakiba Khatoon was married with him according to custom of Muslim on 14-4-1996. She went to his residence on 15-4-1996 and second time she went in January, 1997 and one daughter Kumari Najish Parveen alias Arsi was born from their wedlock. But Smt. Shakiba Khatoon, her mother and her brother were insisting that Darvez Ahmad should live in Varanasi where brother of the revisionist lives. Darvez Ahmad was not willing for it, therefore, some hot talk took place and he made divorce on 4-6- 2000 in presence of witness. In view of plea taken in the written statement in the maintenance case filed by Shakiba Khatoon, learned Family Judge, Varanasi, held that divorce between the parties had taken place on 4-6-2000, therefore, in view of law laid down in case of Smt. Safia Khatoon it was held that Smt. Shakiba Khatoon was divorcee and was not entitled for maintenance and only her daughter was entitled for maintenance.
(3.) THE learned Counsel for the revisionist has cited 2002 All India Judicial Interpretation on Crimes 911, Shamim Ara v. State of U. P. and another, in which it has been held that if talaq is made it must be pronounced. Mere description in the written statement that talaq was made on some particular date is not sufficient. It was observed by Hon'ble the apex Court that "we are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife". It was further observed that "a plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. " A perusal of the record shows that a copy of the written statement was filed by the husband that being fed up with the conduct of the wife, he made talaq on 4-6-2000. This fact has been stated in para 5 of the written statement but nowhere in the written statement filed by the husband opposite party No. 2 it has been alleged that talaq was pronounced repeating three times. The names of the witnesses in whose presence talaq was made is also not mentioned in the written statement.;