1. This petition is by the husband of the second respondent against the order of Judicial Magistrate First Class, Pusad, dated 31-8-1994 in Misc. Cri. Case No. 89 of 1993 and confirmed by the Addl. Sessions Judge, Pusad, on 14-7-1995 in Criminal Revision No. 52 of 1994. The petition is purportedly filed under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure in view of the decision of Supreme Court in Deepti alias Arati Rai v. Akhil Rai reported in JT 1995 (7) SC 175, the learned counsel Mr. Haq submitted that he would be satisfied to sustain his case under Article 227 of the Constitution of India.
2. The 2nd respondent instituted a proceeding under section 125 of the Code of Criminal Procedure, 1973 (for short the Code) for maintenance against the writ petitioner. The learned Judicial Magistrate First Class, Pusad, allowed the petition directing the writ petitioner to pay an amount of Rs. 150/- per month to the 2nd respondent. He also allowed costs of Rs. 150/- in favour of the 2nd respondent. As indicated above, the writ petitioner challenged the said order unsuccessfully before the learned Addl. Sessions Judge, Pusad, who confirmed the order of the learned Magistrate by his order dated 14-7-1995.
3. The two main points urged by the learned counsel, Mr. Haq, on behalf of the petitioner, are that as the writ petitioner has divorced the 2nd respondent, her right, if any, is only under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act). The point urged by the learned counsel is that the very fact that the marriage was dissolved by pronouncement of Talaq is admitted in the petition by the wife and in view of the fact that section 3 of the Act has got overriding effect, section 125 of the code will have no application. This is particularly so when neither the husband nor the wife invoked the benefit of section 5 of the Act. In short, according to the learned counsel Mr. Haq, the petition under section 125 of the code is not maintainable and both the Magistrate and the Addl. Sessions Judge have committed an illegality by allowing the said petition. The said orders are amenable to be quashed by the exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution. On the other hand, the learned counsel for respondent No. 2, Mr. Khubalkar maintained that there is no valid divorce as is understood in Mohammaden Law and consequently the 2nd respondent continues to be the legally wedded wife of the petitioner. Therefore, the claim of the petitioner that the said orders are liable to be quashed under Article 227 of the Constitution is not sustainable.
4. The question whether there was or was not a divorce is a question of fact which need not necessarily fall under Article 227 of the Constitution. Yet in the light of the arguments of the learned counsel for the petitioner wherein certain fundamental questions of law are raised as to the ingredients to be satisfied for the dissolution of marriage under Mohammaden Law, it becomes necessary to examine the same.
5. According to Mr. Haq, Mohammaden Law does not prescribe any particular form as to the exercise of the right of husband to dissolve the marriage. All that is necessary, according to the learned counsel, is an unambiguous intention to dissolve the marriage. Once that aspect is proved by the petitioner, as per Mohammaden Law, according to the learned counsel, the dissolution of the marriage must be held to have taken place. Para 3 of the petition under section 125 of the code was relied on by the learned counsel to show that even the 2nd respondent has admitted to her having received a letter intimating dissolution of the marriage by Talaq, though she has contended in the said para 3 that the letter was maliciously written. Then Mr. Haq relied on para 2 of the objection filed by the writ petitioner in answer to the application by the 2nd respondent under section 125 of the code. That copy of the objection is at page 15-A of the paper-book. Para 2 of the objection only asserts that petitioner is aware of the Talaq. In such circumstance, according to the learned counsel, section 125 of the code can have no application. Learned counsel for the petitioner, Mr. Haq. alternatively contended that even assuming that the Talaq mentioned in the objection is not proved, the aforesaid statement in the objection must be treated as dissolution of marriage from the date of the said objection and, at any rate, after that she is not entitled to the benefit of section 125 of the code. Reliance was placed by the learned counsel in support of the said contention on the decision of this Court in the case of Chandbi v. Bandesha reported in AIR 1961 Bom 121 and also on the decision in the case of Mohammad Ali v. Fareedunnisa Begum reported in AIR 1970 AP 298. On the other hand, the learned counsel for the 2nd respondent, Mr. Khubalkar, contended that whereas according to the petitioner the Talaq was an oral Talaq, as per the deed of Talaq (Ex. 18), of which reference is made by the learned Addl. Sessions Judge in his judgment vide page 32 of the paper-book, according to the learned Addl. Sessions Judge, is vague. What he primarily stressed is, since the writ petitioner has opted to dissolve the marriage by a Talaq-deed, he has to conform to the requirements as per Mohammaden Law which, according to him, necessitates the writ petitioner to execute the said deed in presence of Qazi or wife's father or other witnesses. According to the learned counsel, since Ex. 18 admittedly was not executed in presence of Qazi or wife's father or in presence of witnesses, that cannot have any validity and hence the same was incapable of dissolving the marriage.
6. As per clause 307 of Mohammaden Law by Mulla, 19th Edition, the contract of marriage under Mohammaden Law could be dissolved (i) by the husband at his will, without the intervention of the Court; (ii) by mutual consent of the husband and wife, without the intervention of the Court; and (iii) by judicial decree at the suit of husband or wife. Of course, clauses (ii) and (iii) do not arise for consideration in the context of the facts and circumstances of this case. Here the dissolution is at the will of the husband. As per clause 310 of the same volume, the Talaq could be either oral or in writing; and it proceeds to state that no particular form of word is prescribed for effecting Talaq nor is it necessary that the Talaq should be pronounced in the presence of wife or addressed to her. Reference is made to the decision of Calcutta High Court in the case of Furzund Hossein v. Janu Bibee reported in 1878 ILR (Vol. 4) page 588 wherein it is held that mere pronouncement of word Talaq by the husband without being addressed to any person is not sufficient to constitute a valid Talaq. This decision again came for consideration in the case of Saiyid Rashid Ahmad v. Mt. Anisa Khatun before the Privy Council in AIR 1932 Privy Council 25 wherein Their Lordships after referring to the aforesaid Calcutta decision held that, in the case before Their Lordships, the word of divorce addressed to the wife by name though she was not present, was valid. What is significant to be noted is that even in oral divorce where no form is prescribed, mere pronouncement of word Talaq even before a family council is not valid unless the wife is named. This is stated so in clause 310 of Mohammaden Law by Mulla. As indicated, what are the ingredients of an oral Talaq need not be gone into in the facts and circumstances of this case because Ex. 18 referred to in the order of the Addl. Sessions Judge is described as Talaq-deed (vide page 32 of the paper book). Necessary inference, therefore, is that the Talaq was in writing. Sub-clause (2) of clause 310, which deals with Talaq in writing, states, “a Talaqnama may only be the record of the fact of an oral talaq; or it may be the deed by which the divorce is effected. It may be executed in presence of the Qazi or of the wife's father or of other witnesses.” It is pointed out that Ex. 18 was produced by the wife. That certainly would show that it was sent by the husband to the wife, who produced it in the Court. If the dissolution was by oral Talaq there was no occasion or necessity for drawing up a deed and in fact the facts and circumstances would show that the divorce was sought to be effected by Ex. 18. By sub-clause (2) of clause 310 of Mohammaden Law, referred to earlier, the same had to be executed in presence of Qazi or of the wife's father or of other witnesses.
7. But Mr. Haq vehemently argued that since it is only stated that the deed may be executed in presence of Qazi, or of the wife's father or of witnesses, it is not mandatory that the deed could only be executed in presence of any one of the aforesaid persons. I am unable to agree with the argument of the learned counsel because even assuming that the word ‘may’ may not have the force of ‘shall’, a plain reading of the said sub-clause would show that the use of the word ‘may’ is intended to give an option to the husband to have the deed executed either before the Qazi, or wife's father or witnesses. That particular sentence is incapable of an interpretation to the effect that it is discretionary for the husband to execute the deed of dissolution in the absence of the Qazi, wife's father or witnesses. It is nobody's case that Ex. 18 — Talaq-deed was executed in the presence of the Qazi, father of the wife or the witnesses. Therefore, apparently the deed of dissolution is invalid.
8. Now, it necessarily takes to the next point argued by the learned counsel that the statement of the writ petitioner in the objection that he has dissolved the marriage, would constitute dissolution, has to be adverted to. Though by necessary implication, para 3 at page 15-A, would show that there was allegation that the divorce has been effected, the question for consideration is, whether there could be divorce as per the Mohammaden Law by a mere statement in the pleading. As noticed, the method of divorce has been dealt with in the Mohammaden Law by Mulla, advertence to which has already been made. The dissolution could be either oral or by executing a Talaq-deed. A mere statement in the written statement cannot be treated to be an oral Talaq neither can the same be treated as a deed of Talaq executed in the presence of Qazi, wife's father or witnesses; a mere statement to that effect in the written statement cannot constitute dissolution. Now coming to the decision of this Court reported in AIR 1961 Bom 121, cited supra, wherein it is observed that even though the husband failed to prove the Talaq alleged in the written statement, his statement in the written statement that he has dissolved the marriage would constitute dissolution, as I have indicated, does not appear to be consistent with what Mulla's Principles of Mohammaden Law, to which advertence has already been made earlier. Apart from the same, identical question was considered by this Court in the case of Mehtabbi v. Sk. Sikandar reported in 1995 (3) Bom. C.R 433. In para 6, at page 435, the learned Judge has adverted to the decision reported in AIR 1961 Bom 121 and has observed that existence of a fact has to be first pleaded and then has to be proved by reliable evidence. Mere pleading in the written statement that the husband has divorced the wife by itself will not prove the factum of divorce. The learned counsel for 2nd respondent, Mr. Khubalkar, relied on the decision in the case of Masbullah v. State of U.P reported in 1995 (2) Crimes 715 to contend that the plea of divorce is required to be proved after adducing evidence. He also referred to the decision in the case of Moti-ur-Rahman v. Sabina Khatun reported in 1994 (3) Crimes 236 in support of his case that the factum of alleged dissolution has to be proved. I am in respectable agreement with the proposition in 1995 (3) Bom. C.R 433 wherein it was held that mere pleading in the written statement by itself cannot prove the factum of divorce. It will not be out of place to mention that the writ petitioner in his objection to the petition under section 125 of the code does not specifically mention the date, month or year in which he dissolved the marriage by pronouncing Talaq. Thus, though adherence to the pleading as required in a civil suit as such may not be necessary in a proceeding under section 125 of the code the jurisdictional facts which have got nexus with the jurisdiction of the Court to adjudicate the issue have to be specifically pleaded. That again is a defect in the case of the writ petitioner.
9. In view of the aforesaid discussion, I am unable to agree with the learned counsel, Mr. Haq, that this Court can invoke jurisdiction under Article 227 of the Constitution of India and quash the impugned orders. The writ petition is liable to be dismissed. In the result, the writ petition fails and the same is dismissed.
Writ petition dismissed.