Keputusan kes Mst. Fazi v Ali Mohammad Pandoo
walaupun tidak berkaitan dengan tuntutan mut’ah tetapi sebaliknya adalah mengenai
kes tuntutan nafkah iddah dan nafkan anak dibawah seksyen 488 dan 489 Jammu and
Kashmir Code of Criminal Procedure (Amendment) Act, 1998, namun ia adalah juga
berkaitan dengan hal pemakaian Hukum Islam di Negeri Jammu Kashmir, India. Penduduk
Jammu Kashmir ini majoritinya adalah berugama Islam. Persoalan samada tuntutan
mut’ah/mata boleh dituntut di negeri itu bergantung kepada tafsiran Mahkamah
terhadap maksud Mohamadan Law dan ayat 241 dari surah al-Baqarah dan lain-lain.
S.
Murtaza Fazl Ali, C.J.dalam kes itu berkata:
‘… Section
488 of the Code of Criminal Procedure is not subordinate to any personal law
but is a general law on the subject which has to be regulated by personal law
and the circumstances. If the Mohamadan Law confers a right of maintenance
during the period of Iddat, then such a legal right can be enforced under
Section 488 of the Code of Criminal Procedure during that period. Section 4
(1) (d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977
runs as under:
...
(d)
in questions regarding succession, inheritance special property of females,
betrothals, marriage, divorce, dower, adoption, guardianship, minority,
bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or
any religious usage or institution, the rule of decision is and shall be-
The Mohammaden Law in
cases where the parties are Mohammadens ...
By
force of this statute
therefore since the wife is entitled to maintenance during the period of Iddat
after divorce has been made, the criminal court acting under Section 488 of the
Code of Criminal Procedure becomes empowered to grant this maintenance during
this limited period.’
Dibawah
ini adalah keputusan penuh kes tersebut.
*****************************
Mst.
Fazi vs Ali Mohammad Pandoo 1975 Cri LJ 1228
Decision
by Jammu High Court on 31 October, 1974
Bench:
S M Ali, J Singh
JUDGMENT:
S. Murtaza Fazl Ali, C.J.
1.
This is a reference made by the learned Sessions Judge, Srinagar, recommending
modification in the order passed by the trial Magistrate (Second Addl : Munsiff
Judicial Magistrate), dated 7-6-1973.
2.
The reference arises in the following circumstances:
Mst.
Fazi, the applicant before the trial court, filed an application under Section
488 of the Code of Criminal Procedure for award of maintenance to her and to
her two children, begotten by her from her husband, Ali Mohammad, on the ground
that her husband, Ali Mohammad, had refused to maintain her and the two
children. The application was resisted by the husband Ali Mohammad who took a
specific plea in his objections dated 12-2-71 that the applicant Mst. Fazi had
been divorced irrevocably by him by virtue of a divorce deed dated 29-9-1970.
It was further alleged that a registered notice of this divorce deed was given
to Mst. Fazi but she refused to accept the notice. While the proceeding before
the trial court was pending a compromise was arrived at between the parties on
15-11-71 by which the husband agreed to take back his wife Mst. Fazi provided
she came to his home within ten days of the compromise deed and revoked his
earlier divorce given by him to her. Unfortunately the compromise fell through
and the question of maintenance was revived by Mst. Fazi. To this the husband
filed another objection on 29-5-1972 reiterating that the divorce had become
irrevocable and that Mst. Fazi ceased to be his wife and therefore was not
entitled to any maintenance.
I might
mention here that the trial Magistrate had granted maintenance at the rate of
Rs. 50/- per month to the two children of the applicant Mst. Fazi viz : Imtiyaz
Bano and Sami Jan from the date of the application, and had rejected the prayer
of the applicant Mst. Fazi for grant of maintenance on the ground that as the
divorce had become irrevocable on 29-9-1970, she ceased to be the wife of Ali
Mohammad and therefore, was not entitled to any maintenance.
Against
this order of the trial Magistrate, a revision was taken before the learned
Sessions Judge, Srinagar, for making a reference to this Court for granting
suitable maintenance to the wife Mst. Fazi because the divorce given by the
husband had been revoked during the course of compromise between the parties.
The learned Sessions Judge has recommended that the wife Mst. Fazi was
undoubtedly entitled to maintenance during the period of Iddat, and therefore
he has referred this case to us for modifying the order of the trial
Magistrate. There is no dispute regarding the grant of maintenance allowance to
the children of Mst. Fazi except with regard to the quantum allowed by the
trial court.
3.
Mr. Zaffar Ahmad Shah appearing for the husband submitted two points before us.
In the first place he argued that in view of the divorce deed dated 29-9-1970
which is a Talaq in writing and in which the husband has given Talaq
irrevocably and has made his intention absolutely clear, the Talaq must be
deemed to have taken effect on 29-9-1970 and in case of a written Talaq it is
not necessary that it should be communicated to the wife. All that is necessary
is that the Talaq Nama should be signed by two marginal witnesses, which has
been done in this case.
This
view was accepted by the trial court but the learned Sessions Judge was of the
view that in view of the compromise between the parties, Talaq Nama dated
29-9-1970 stood revoked and a fresh divorce would be deemed to have taken place
with effect from 12-2-1971 i. e. the date when the assertion was made by the
husband in the written statement. This proposition has been seriously
criticised by the learned Counsel opposing the reference.
4.
Secondly it was argued by Mr. Shah that even if the Talaq had not become
irrevocable on 29-9-1970, the wife was not entitled to any maintenance during
the period of Iddat under Section 488 of the Code of Criminal Procedure but
would be entitled to maintenance only under the civil law. The argument was
that the moment the divorce became effective, Mst. Fazi ceased to be the wife
of Ali Mohammad and therefore the provisions of Section 488 of the Code of
Criminal Procedure would have no application.
5.
We have given anxious consideration to both the arguments advanced by the
learned Counsel for the husband.
As
regards the first point we are inclined to agree with the learned Counsel for
the husband that the Talaq in this case became irrevocable on 29-9-1970, when
it was reduced into writing and was witnessed by two witnesses. Under the
Mohammadan Law there are two kinds of Talaqs, oral Talaq i. e. expressing
certain words orally by which the Talaq is recited by the husband and secondly
the Talaq in writing where Talaq is reduced into writing, In case of an oral
Talaq, it is necessary that the wife must be informed of the same and unless she
is informed, the Talaq does not become effective. This is what is elucidated in
Section 310 of the Mulla's Mohomedan Law. So far as the written Talaq is
concerned, this is also of two kinds. It may be in the customary form or in the
unusual form. When it is in the customary form, then the Talaq is manifest from
the recitals of the document and takes effect immediately and is irrevocable.
In the instant case having gone through the recitals of the Talaq Nama we are
satisfied that it is in the customary form and the intention to give divorce is
irrevocably present in the document. Not only has the husband in clear terms
divorced Mst. Fazi but has also compared her to his sister, which amounts to
irrevocable divorce under the Mohomedan Law. There is some evidence in the case
to show that a notice of this Talaq was communicated to the wife by a
registered letter which she refused to accept. But as I have already stated
that in a written Talaq which is in the customary form, it is not necessary
that the wife should be informed thereof. It is sufficient if the recitals of
the deed are clear that the wife is divorced and once the formula of Talaq has
been pronounced and the deed signed by two witnesses, the Talaq becomes
irrevocable.
6.
In the instant case it is signed by two witnesses and its recitals are clear on
the point of divorce. In these circumstances therefore, we are unable to agree
with the view taken by the learned Sessions Judge that the Talaq stood revoked
in view of the compromise entered into by the parties. Under the Mohomedan Law once
Talaq becomes irrevocable, it cannot be revoked. In these circumstances
therefore we think that when the Talaq had become irrevocable on 29-9-1970,
there was no question of its reviving the marriage ties and the divorce being
revoked by any subsequent conduct on the part of the husband either with the
consent of the wife or without her consent.
In
these circumstances therefore the short question for determination is when the
Talaq became irrevocable on 29-9-1970, whether the wife Mst. Fazi was entitled
to maintenance at least for the period of Iddat i. e. between 29-9-1970 and
29-12-1970.
On
this point Mr. Shah who argued this case with persuasive and ingenuity has
submitted that the award of maintenance during Iddat is only a personal right
of a wife available to her under the Mohomedan Law, and she can get this right
only in a civil court. For the purpose of Section 488, Criminal P. C. the wife
Mst. Fazi after being divorced would not be a wife in the eye of law and
therefore Section 488 would have no application.
We
are however, unable to agree with this contention. Section 488 of the Code
of Criminal Procedure is not subordinate to any personal law but is a general
law on the subject which has to be regulated by personal law and the
circumstances. If the Mohamadan Law confers a right of maintenance during the
period of Iddat, then such a legal right can be enforced under Section 488
of the Code of Criminal Procedure during that period. Section 4 (1) (d) of the Sri
Pratap Jammu and Kashmir Laws Consolidation Act, 1977 runs as under:
...
(d) in questions regarding succession, inheritance
special property of females, betrothals, marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills, legacies, gifts,
waqf, partitions, castes or any religious usage or institution, the rule of
decision is and shall be-
The Mohammaden Law in cases where the parties are Mohammadens....
By
force of this statute therefore since the wife is entitled to maintenance
during the period of Iddat after divorce has been made, the criminal court
acting under Section 488 of the Code of Criminal Procedure becomes empowered to
grant this maintenance during this limited period.
7.
For these reasons therefore the argument advanced by learned Counsel opposing
the reference on this score is overruled.
We
would therefore, accept the reference to this extent that Mst. Fazi shall be
awarded maintenance only for the period of Iddat i. e. for three months
(from 29-9-1970 to 29-12-1970) at the rate of Rs. 50/- per month i. e. to a
consolidated amount of Rs. 150/-. The recommendation of the learned Sessions
Judge that the amount of maintenance awarded by the learned trial Magistrate to
the children viz : Imtiyaz Bano and Sami Jan should be increased to Rs. 30/-
per child per month is accepted.
8.
With these observations the reference is disposed of.
Tiada ulasan:
Catat Ulasan