P L D 1959 Lahore 167 (PLP)

Date of hearing : 24‑11‑

58. The facts leading up to this petition for revision are that Mst. Imtiaz Begum, the present respondent, applied under section 488 of the Code of Criminal Procedure for the grant of maintenance to herself and her minor son, Basharatullah, against her husband Azmatullah, the present petitioner, on the ground that he had neglected to maintain them, that he had taken a second wife, and that he had turned Mst. Imtiaz Begum out of his house, thus compelling her to take up residence with her parents.

2. Azmatullah denied having neglected or refused to maintain the respondent and his son, his version being that Mst. Imtiaz Begum had quarrelled with him and gone off to live with her parents of her own free will. She is also alleged to have removed valuables belonging to Azmatullah from his house.

3. During the pendency of the above proceedings, learned counsel for Mst. Imtiaz Begum stated that Azmatullah had divorced his wife and prayed that his statement be recorded so that in the event of his admitting the divorce, the further proceedings should be confined to the question of the maintenance of the minor. Azmatullah was examined on the 10th of November 1956 and denied the alleged divorce, at the same time expressing his readiness to maintain Mst. Imtiaz Begum and his minor son on condition that they lived with him. Later the same day, however, after the case had been adjourned, he lodged an application in which he alleged that his denial of the divorce was based on a misunderstanding and that he had in fact divorced Mst. Imtiaz Begum. At the same time, he contended that the document had not been acted upon as Mst. Imtiaz Begum had resiled from an undertaking she had given respecting her dower, clothes and certain valuables, and had also put forward a new demand, namely, that her son should remain in her custody until he had finished his education. For the above reasons, Azmatullah had not handed over the divorce deed to his wife but had kept it with him.

4. The learned Magistrate held that the divorce deed in dispute, a copy of which (Exh. P. A.) had been produced by Shauq Muhammad, petition‑writer (P. W. 1), even though not communicated to the wife, had the effect of divorcing the parties irrevocably from the date of its execution, and that consequently Mst. Imtiaz Begum was only entitled to maintenance for herself up to the date of expiry of the iddat period. She was accordingly, by order dated the 28th of January 1957, granted maintenance at the rate of Rs. 30 per mensem from the 12th of July 1956, the date of the application under section 488, Cr. P. C. Basharatullah was granted maintenance at Rs. 20 per mensem from the same date until the father received the custody of the boy.

5. Azmatullah filed a revision petition in the Court of the Additional Sessions Judge, Lahore, against the above order so far as it related to the grant of maintenance to Mst. Imtiaz Begum, the grant of maintenance to the child not being contested. The first plea taken was that the learned Magistrate had given no express finding on the question of whether the petitioner had been guilty of neglect or omission to maintain his wife. It was next urged that as the learned Magistrate had failed to fix the period of iddat, the order was illegal. Finally, the petitioner contended that the finding that the petitioner had divorced his wife was based on inadmissible evidence.

6. On the first point, the learned Additional Sessions Judge, while agreeing that a finding of neglect or omission to maintain his wife should have been given by the learned Magistrate, went on to observe : "This technical defect in the order in this particular case will not be sufficient to recommend revision against it, because a very minor amount is involved. Maintenance has been allowed to the woman with effect from 12‑7‑1956 and the divorce took place on 10‑10‑1956. Thus maintenance of nearly three months only is in dispute and for this period the petitioner has to pay Rs. 90 only". The other contentions of the petitioner were also repelled, the learned Additional Sessions Judge holding that as the period of iddat is prescribed by law, it was not necessary for the learned Magistrate to specify it, and that since the petitioner had himself admitted the factum of divorce, there was no need to inquire into the circumstances which led to the dissolution of the marriage.

7. Aggrieved by the above order, Azmatullah has now filed the present revision petition in this Court.

8. The first observation that must be made is that if the learned Additional Sessions Judge is correct in holding that before making an order for maintenance the Magistrate must give a finding that the respondent was guilty of neglect or omission to maintain the applicant, he was not entitled to refuse to take notice of the supposed illegality or material irregularity merely on the ground that the pecuniary amount involved is small. In my opinion, however, the failure to record a definite finding that Azmatullah had neglected or refused to maintain his wife and child A did not amount to an illegality, but was only an irregularity curable by section 537 of the Code of Criminal Procedure, the learned Magistrate's order making it clear that in spite of the absence of a specific finding, he considered the present petitioner's neglect to maintain his wife and child, at least from the date of the application for maintenance, to be amply established from the material on the record, including his own admission. The relevant portion of the judgment runs :‑ "She (Mst. Imtiaz Begum) has also alleged that the respondent has neglected to maintain her and the child for the last five years. The respondent has, on the other hand, stated that he has not provided maintenance to both of them only for the last four or five months as they had brought this complaint against him".

9. The next point raised by Mr. Abdul Majid for the petitioner is that even if, for the sake of argument, the divorce of the 10th of October 1956 be held to be established, the learned Magistrate had no jurisdiction to grant maintenance beyond the date of the divorce, Mst. Imtiaz Begum having ceased from the said date to be the wife of the petitioner. In support of this contention he relies on paragraph 312 (3) of Mulla's Muhammadan Law, 1950 edition, in which it is pointed out that a talaq in the badai mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. The divorce in dispute in this case is admitted by the respondent to be in the badai form, but Mr. Abdul Majid has overlooked the principle laid down in paragraph 279 of the same work, naively, that after divorce the wife is entitled to maintenance during the period of iddat. This principle is not affected by the nature of the divorce, so that even when the divorce is irrevocable from the date of pronouncement, the divorced wife remains entitled to maintenance until the period of iddat has expired.

10. Mr. Majid's contention that the learned Magistrate had no jurisdiction to grant maintenance for the period of iddat is also unsupported by any authority, there being on the contrary several decisions against him. For example, in In re Shekhanmiar Jehangirmian (A I R 1930 Born. 178), it was held by implication that a Magistrate had jurisdiction to grant maintenance up to the end of the period of iddat from the date of an irrevocable divorce. Again, in Mahomed Nagman v. Zullekhan (A I R 1939 Sind 179) it was held that a Magistrate can direct a husband to pay maintanance from the date of application until the expiry of the period of iddat. Finally, in Shah Abu Iyas v. Ulfat Bibi (I L R 19 All. 50), after holding that where, in answer to an application for enforcement of an order under section 488 of the Code of Criminal Procedure for the main tenance of a wife, the party against whom such order is subsisting pleads that he has lawfully divorced his wife and that therefore the order can no longer be enforced, it is the duty of the Court hearing the application to entertain and consider such plea, and, if it finds the plea established, to decline to enforce the order for any period subsequent to the date when the marriage ceased to subsist between the parties, the learned Judges laid down that where the parties are Muhammadans, the marriage will be deemed to subsist until the expiration of the iddat.

11. The finding of the learned Magistrate that the divorce is proved is clearly correct. Mr. Majid's further contention that the operation of the deed was to be contingent on the fulfilment of certain conditions by the present respondent, finds no support from the document itself, and is not proved by any other reliable evidence.

12. I am also unable to accept the argument of the petitioner that in view of the alleged request of the respondent's counsel to confine the proceedings in the lower Court to the grant of maintenance to the child alone, no maintenance could be awarded to the respondent. The obvious intention of the statement made by learned counsel for the present respondent during the pro ceedings before the learned Magistrate that "further proceedings be circumscribed to the question of maintenance for the minor child only" is that it was only the child who would be entitled to maintenance for the future. The whole trend of the subsequent proceedings shows that learned counsel for the present respondent had no intention of giving up Mst. Imtiaz Begum's claim to maintenance until the expiry of the period of iddat. In this connection it may be remarked that it is unfortunate that the learned Magistrate did not record the statement of the learned counsel in writing.

13. No other argument advanced on behalf of the petitioner has any force. The petition fails and is dismissed. The petitioner will pay the costs of the respondent. K. B. A. Petition dismissed.