- (1.) S. K. Verma, J. The present revision has been filed against the judgment dated 7-5-1992 passed by the Principal Judge, Family Court, Barrenly in Criminal Misc. Case No. 113 of 1991.
(2.) THE facts, in brief, are that Sent. Ratiqan filed a petition for maintenance under Section 125, Cr. P. C. with the allegations that out of the wed-loaf between the two, a daughter who is now 13 years old was born. Three other issues were also born before this daughter but they could not survive. THE husband turned her out from his house and contracted another marriage. THE wife claimed Rs. 500 per month for herself and equal amount for daughter as maintenance. THE husband admitted the factum of marriage but stated in the written statement that he had divorced Smt. Rafiqan 18 years ago and the daughter was not born out of this wed-lock. THE Family Court after discussion of the evidence on record came to the conclusion that Smt. Rafiqan had not been divorced and she was entitled to Rs. 300 par month for herself and Rs. 200 for daughter per month from 7th January, 1991. Hence this revision. I have heard learned counsel for the parties and have gone through the record carefully. The main argument for the learned counsel for the revisionist is that even if the divorce has not been proved the mere fact that the written statement of the revisionist contains a declaration of divorce is enough to enable the Court to record a finding that a divorce has been affected from the date the written statement has been filed. In support of this argument learned counsel for the revisionist has cited the decision in Chandbi v. Bandesha, AIR 1991 Bom 121 and Enamul Haque v. Taimunissa, AIR 1967 Pat 344 and Smi. Ajmerulnisan v. Main Ahmad, 1983 AWC 997. In the Bombay case (supra) the observations of Syed Ameer Ali's Mohomodan Law, 5th Edition, page 479 have been quoted and on that basis it has been found that although the husband failed to prove the marriage which he alleged to have taken place 30 years ago, he did divorce the wife as from the date on which he filed the written statement. The case of Chandbi v. Bandesha, (supra) has been relied in the two subsequent cases of Enamul Haque v. Taimunissa, (supra) and Smt. Ajmerulnisan v. Atoin Ahmad, (supra ). Reference has been made to the decision in Azmat Ullah v. Mt. Khatun-Unnisa, AIR 1939 All 592, in Chandbi's case in which it was held that the statement in the written state ment filed by the husband was an acknowledgment of Talak alleged to have been granted by him already and that the divorce would be held to have effect at least from the date upon which the acknowledgment was made. It would, thus, appear that even if through evidence the revisionist could not prove that he had divorced his wife 18 years age, yet since he had made an averment in the written statement that he had divorced his wife that acknowledgment would take effect from the date of filing of the written statement. That brings us to the further argument that once it is found that Smt. Rafiqan was divorced, the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 would apply, Section 3 of the aforesaid Act provides for divorced woman's rights to Mehar and other properties of husband as well as maintenance during the Iddat period by her former husband, Section 4 of the aforesaid Act deals with power of the Magistrate to order for payment of maintenance for the period after Iddat to a divorced woman. It has, therefore, been argued that the direction of the Magistrate for the payment of maintenance is illegal and that he should proceed accord ing to Section 3 and 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986, so far as the maintenance of Smt. Rafiqan and her daughter is concerned.
(3.) THE learned counsel for the opposite party has argued on the basis of the decision in Ghulam Sabir v. Rayeesa Begum, 1988 AWC 910 : 1988 JIC 283 (All) that the learned Magistrate has yet to decide the question whether there has been a divorce in this case and if so on what date. If he comes to the con clusion that the divorce was not pronounced at all then obviously the Act of 1986 will not apply. To my mind, this argument has no force because of the legal position discussed earlier that even if the husband makes a deliration in his written statement that ho has divorced his wife then that declaration/acknowledgment of divorce will take effect from date of filing of the written statement. In view of the discussion made above, the impugned order passed by the learned Family Court is set aside. The Family Court is directed to decide the question of maintenance according to the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 and the rules framed there under. The parties shall appear before the learned Family Court on 15th March, 1995. It is expected that the Family Court will decide the matter at an early date. With these directions, the criminal revision is finally disposed of. Revision disposed. .;