1968 P Cr (PLP)

K. A. Bakr for M. Hafizullah for Petitioner. Ataur Rahman Khan for Aminul Haq for the Opposite‑Party, This application is directed against an order passed under section 488, Cr.P.C 'the application under section 08, Cr.P.C. was made by one Wadudur Rahman Khan on behalf of his niece Jahanara Begum and her daughter "Sriti". It was alleged that Jahanara was married to the petitioner before him on 4‑2‑6'J and in June 1960 her husband left her in the house of Wadudur Rahman and neglected to maintain her or to take her back. The husband is alleged to have contracted another marriage in June 1960. In January 1960 Jahanara gave birth to the daughter `Sriti'. The application under section 488, Cr. P. C. was filed in 1963. The husband entered appearance and pleaded that Jahanara had divorced him by virtue of delegated powers on 21‑3‑

60. He had further divorced Jahanara on the said date and also by a registered Talaknama on 25‑11‑

60. Moreover, he claimed that the daughter was not his. The learned Magistrate after protracted hearing passed an order on 19‑3‑60 holding that the husband had not been able to establish that he had divorced Jahanara and holding that the child was his, and he directed the petitioner before me Abdul Quddus to pay a sum of Rs. 50, as a monthly allowance for his wife Jahanara and a sum of Rs. 25, as a monthly allowance for his daughter `Sriti' from the date of filing the petition claiming maintenance for his niece Jahanara and child on 2‑1‑

63. Against that order the husband moved the learned Sessions Judge for referring the order to this Court. Before the learned Additional Sessions Judge the husband did not claim that the daughter was not his own. The only issue pressed before him was as regards the fact of divorce. The learned Additional Sessions Judge also did not accept the case of divorce and refused to refer the case to this Court. Hence, this revisional application by the husband. Mr. K.A. Bakr appearing on behalf of the petitioner has strenuously urged that the divorce was established by the evidence on record. So far as the alleged divorce given by the wife Jahanara to her husband on 21‑3‑60 the husband had produced in the Court below and the alleged Talaknama signed by Jahanara but Jahanara herself in Court denied her signature and her specimen signatures were taken by the Court immediate ly and the Court found the difference then and there although the judgment might have been delivered much later. So far as the oral divorce given on the same date it does not appear that it was pressed to great extent by the husband in the Courts below and the evidence thereto is contradictory and very meagre. We then come to the divorce purported to have been given before a Qazi, i.e. Exh. B. Now so far as the Exh. B is concerned it shows that the husband gave the divorce by pronouncing it aloud three times. The document itself does not show when the husband pronounced the Talak as required by Muhammadan Law. It is simply stated in the relevant column. These wordings clearly show that it is a mere record of a past act by the husband. The Talaknama itself is not the talak‑e -Bain as contemplated under Mohammadan Law. Therefore it is necessary to examine the person who recorded this document, i.e, Exh. B, to ascertain from him when the Talak itself was pronounced. If the Talak was not pronounced by the husband. It all merely writing it in Exh. B, will not be sufficient to effect the divorce, as the writer is not giving the Talak, There must be evidence that the husband pronounced this Talak 3 times as required by Mohammadan Law in front of the witnesses. Neither the person who wrote Exh. B, nor the original volume was called for by the learned Magistrate. Therefore it is difficult to hold that a divorce as contemplated by Mohammadan law has been effected. On the other hand, it would be illegal and highly undesirable to continue a marriage which has, in fact, been dissolved by valid pronouncement of divorce. In these circumstances so far as the question of maintenance regarding Jahanara is concerned the case is sent back to the learned trial Court to enable the petitioner to produce as necessary evidence as indicated above to prove his case of divorce as shown by Exh. B. The case should be heard within 3 weeks from the date of the arrival of the record in that Court. The case will be enquired into by the learned Magistrate who originally passed the order if he is still at the station, otherwise by any competent Magistrate whom the learned S. D. O. thinks fit or by the S. D. O. himself. On taking the evidence the records are to be transmitted to this Court for decision so far as the question of maintenance of Jahanara is concerned. But so far as the question of maintenance of the daughter "Sriti" is concerned the order passed by the learned Magistrate must be given immediate effect to, failing which consequences provided in the section itself will follow. The Rule, is therefore, discharged so far as the daughter is concerned and the final order will be passed in this Rule when the evidence, as indicated above, is received by this Court. Rule discharged.