1. This is defendants' second appeal.
2. The suit was filed by the respondent for a declaration that he had divorced the defendant and that the defendant was his divorced wife. It was stated in the plaint that the defendant was divorced by a pronouncement in writing in the presence of the witnesses on 16-11-1972. The plaintiff was in service in the Military and the defendant had been making complaints to his superior officers. She paid no heed to the request of the respondent that since she had already been divorced, she should stop making complaints.
3. It was in these circumstances that the suit was filed. The suit was contested. The claim of the plaintiff-respondent that he had divorced the appellant by a document in writing on 16-11-72 was denied. She claimed that she was still the legally wedded wife of the respondent. It was also pleaded by the appellant in her written statement that the plaintiff had married a second wife on 14-4-1973 and since the second marriage was not permissible under the service rules, the plaintiff had therefore falsely started saying that he had divorced the defendant, although he had not actually divorced her.
4. The suit was dismissed by the trial Court. The respondent then filed an appeal which was allowed by learned Civil Judge, Sultanpur on 20-5-78 and a declaration was granted in favour of the respondent that the appellant was his divorced wife. The defendant has now come up in second appeal.
5. I have heard the learned counsel for the parties.
6. It has been contended on behalf of the appellant that since there was no evidence on record to indicate that the respondent had divorced the appellant on 16-11-72 by a document in writing, the lower appellate Court was wrong in decreeing the suit. It has also been contended that although it was claimed in the plaint that the plaintiff had paid the amount of dower as also the maintenance amount for the period of “Iddat”, the respondent in his capacity as P.W 1 had clearly admitted that he had not paid the amount of dower nor had he paid the amount of maintenance for the period of “Iddat”.
7. The second question that has been agitated before me does not really arise in this case, as the trial Court as also the lower appellate Court have not recorded a finding that the respondent had paid the amount of dower as also the amount of maintenance for the period of “Iddat” to the appellant. As a matter of fact, this question does not at all arise in this case which was instituted by the respondent only for a declaration that the appellant was his divorced wife.
8. Coming to the first question, I may observe that there is already a document Ext. 1 on record which is a letter dt. 16-11-72 written by the respondent to the appellant in which it has been stated that the respondent had divorced her. This document has also been relied upon by the lower appellate Court. There is thus clear evidence available on the record to indicate that the respondent had divorced the appellant on 16-11-72.
9. Even if the document (Ext. 1) is ignored the appellant shall still be treated to have been divorced by the respondent on the date on which the statement to that effect was made by the respondent in his plaint. In the case of Chandbi v. Bandesha, AIR 1961 Bom 121 it has been held that where to an application for maintenance under S. 488 Cr. P.C 1898, by a Mahomedan wife, the husband files a written statement that he had already divorced the wife the statement, even if the fact of such divorce is not proved, operates as a declaration of divorce as from the date of the written statement. To the same effect is the view expressed by Patna High Court in the case of Enamul Haque v. Bibi Taimunnisa, AIR 1967 Patna 344 and by this Court in the case of Asmat Ullah v. Khatun-Unnisa, AIR 1939 All 592. See also the case of Wahab Ali v. Qamro Bi, AIR 1951 Hyderabad 117.
10. In view of the above, the suit of the respondent was rightly decreed by the lower appellate Court. The appeal has no merits and is consequently dismissed with costs.
11. Appeal dismissed.