Whether burden of proof is on the muslim husband to prove that he has given divorce to his wife and how he should prove it?

Having heard learned Counsel for the parties and after perusing the entire record, this Court is of the opinion that in pursuance of definition of divorced woman, it is bounden duty of the husband to prove in Court by adducing cogent and reliable evidence that he had divorced his wife in accordance with Muslim law especially when the wife is not accepting the divorce and denies the factum of giving divorce to her by her husband. Section 2(a) of (The) Muslim Women (Protection of Rights on Divorce) Act, 1986 is defined as under:--

"2, Definition.-- In this Act, unless the context otherwise requires--

(a) "Divorced woman" means a Muslim woman who married according to Muslim Law, and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law."

In the present case applicant/wife filed an application under Section 125, Cr.PC for grant of maintenance. In reply to this application, non-applicant/husband submitted in Paragraph 2 that in August, 1997, he had given divorce to the applicant/wife according to Muslim Law. Thereafter, he has filed written application on 1-5-1998, in which he has mentioned that he has pronounced oral divorce to his wife and also given divorce in writing before the Trial Court and has no relations with her.  Learned Revisional Court has failed to consider whether the divorce was given in accordance with the Muslim Law. It is pertinent to note that non-applicant/husband neither examined himself in Court as a witness nor given any opportunity to cross-examine to the applicant/wife. He has not examined any other witness in his favour in Court for establishing his case by adducing evidence. As a matter of fact, in the entire case, there is no evidence led by the husband to prove his case. A mere pleading as mentioned in paragraph 2 of his reply or filing an application about pronouncement or declaration of divorce, would not sufficient to establish that non-applicant/husband has given divorce to the applicant/wife in accordance with the Muslim Law as embodied in Section 2(1)(a) of the Muslim Woman Act.

The fact is also very important and noticeable that the wife/applicant served legal notice dated 2-12-1997, Exh. P-1, its acknowledgment is Exh. P-2 by which she demanded maintenance @ Rs. 2,000/- per month. This notice was duly received by the non-applicant/husband and also admitted the receipt of notice in Paragraph 8 of the reply submitted on 2-9-1998. When the non-applicant husband received notice on 2-12-1997, why he had not given intimation of divorce and reply to this notice informing that the applicant/wife was already divorced in the month of August, 97 and as such now she is not entitled for any maintenance except in accordance with the Provisions of Muslim Women Act.

Learned Lower Revisional Court has failed to consider that the non-applicant/husband has failed to establish that applicant/wife has been given divorce by him in accordance with Muslim Law. For this purpose, non-applicant/husband neither examined him in Court nor adduced any evidence. In absence of this, it cannot be said that the applicant/wife acquired status of divorced woman and, therefore, her application under Section 125, Cr.PC was maintainable only from the period of filing the application till the date of giving divorce and for iddat period.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Criminal Revision No. 341/2001

Decided On: 19.07.2002

Khatunbai  Vs. Gani Khan

Hon'ble Judges/Coram:

S.L. Kochar, J.

Citation:  MANU/MP/0316/2002.

The applicant has filed this revision petition against the order dated 8-5-2001 passed by IIIrd AST, Dewas in Criminal Revision No. 98/2000 wherein learned Sessions Judge set aside the order dated 25-7-2000 passed in Misc. Criminal Case No. 75/97 by Judicial Magistrate, First Class, Bagli, District Dewas thereby granting maintenance @ Rs. 2000/- per month to the applicant.

The facts of the case lie in a narrow compass, that the respondent/ wife, on 22-12-1997, filed an application under Section 125 of the Cr.PC for grant of maintenance before the Judicial Magistrate, First Class, Bagli, District Dewas. According to her, she was legally wedded wife and gave birth to 2 sons named Sabbir and Shakir after marriage. The non-applicant/husband was ill-treating her for demand of dowry. He turned his wife out from the house after beating and ill-treating. As he wanted to marry with other woman, after turning his wife out of the house, he got married with another woman. After desertation, he did not make any provision for her maintenance. Applicant/wife has no source of income to maintain herself whereas non-applicant/husband was earning 3000/- rupees per month as he is working as a driver. Apart from this, he is running a tent house from which he is earning 5000/- rupees per month. He is also doing the business of cotton bed and quilt and also having earnings from an agriculture. She demanded only 2000/- rupees per month as maintenance.

Non-applicant/husband, after his appearance submitted written reply dated 2-9-98 and averred that the applicant/wife was not willing to live with him and was oftenly picking quarrel. Therefore, in accordance with Muslim Law, oral divorce was given to her in front of witnesses, on August, 1997. Thereafter, she was turned out from the house of the husband and she went in her parental house and from the date of divorce he has no relations with her. He further, submitted that since the applicant was divorced wife, she has no right to file an application under Section 125 of the Cr.PC, for grant of maintenance. The facts and grounds mentioned by the applicant/wife in the application under Section 125, Cr.PC for grant of maintenance were emphatically denied by the non-applicant/husband in the reply. In the Trial Court, the applicant examined herself, her witness Ramchandra (P.W. 2), Moolchand (P.W. 3) and Sakir (P.W. 4) son of the applicant and non-applicant. She got proved notice dated 2-12-1997 and an acknowledgment about service of notice served upon the non-applicant, Exhs. P-1 and P-2.

The factum of service of notice Ex. P-1 and its acknowledgment, has been accepted and admitted by the non-applicant, in his reply in para 8. The non-applicant has not examined himself or any other witness in the Trial Court in his favour. His main contention appears to be before the Trial Court was that he had given oral divorce to his wife according to Muslim Law before the witnesses. Therefore, the application under Section 125, Cr.PC filed by the wife, was not maintainable. During the course of proceedings, non applicant/ husband has also submitted an application on 1-5-1998 before the Trial Court stating that he had already given oral divorce to his wife because she was not properly behaving with rim and has also given in writing that he had divorced her as under :--

{Vernaculars omitted}

In Paragraph 8 of the cross-examination of the applicant, she has denied the factum of divorce as stated by the non-applicant in the reply as well as in the application. Moolchand (P.W. 3) has also expressed his ignorance about the divorce between the applicant and non-applicant in Paragraph 4. Sakir (P.W. 4) son of the applicant and non-applicant has also denied about the divorce alleged to have been given by his father.

Learned Trial Court, after hearing both the parties, passed the order of maintenance in favour of the applicant/wife directing the non-applicant to pay maintenance at the rate of Rs. 2000/- from the date of filing of the application. Against this order dated 25-7-2000, the non-applicant went up in revision and the learned Revisional Court has allowed the revision in part mainly on the ground that the non-applicant/husband divorced the applicant on 1-5-98, therefore, divorced/wife is entitled for maintenance from the date of application i.e., dated 22-12-1997 to the date of divorce dated 1-5-1998 and thereafter, for 3 months Iddat period at the rate of Rs. 2000/- per month, as per the Provisions under Muslim Women (Protection of Rights on Divorce) Act, 1986. This order impugned before this Court is under challenge.

Learned Counsel Mr. C.L. Yadav, for the applicant has submitted that the non-applicant/husband failed to prove after adducing cogent and reliance evidence that he had divorced the applicant/wife in accordance with the Muslim Law. The learned Counsel relied on definition of 'Divorced woman' in Section 2 of (The) Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "Muslim Woman Act") as well as decisions reported in Mumtazben Jasabbhai Sipahi v. Mahebubkhan Usmankhan Pathan (1999 Cr.LJ 888); and judgments rendered by the Supreme Court in Danial Latifi and another v. Union of India [JT 2001 (8) SC 218]. In contra to the submissions made by the learned Counsel for the applicant, learned Counsel appearing for the non-applicant supported the order passed by the Revisional Court relying on the judgments passed by this Court in Rafik Shah v. Farida Bi [2000(1) MPWN 77); Abdul Haq v. Yasmin Talat [1998(1) MPWN 68]; Farida Begum v. Nisar Ali Kadri [1998(1) MPWN 173]; Gulam Hassan v. Johra Bi (1996 MPLJ 34); Abdul Rashid (Dr.) v. Mst. Farida MANU/MP/0227/1993 : (1994 JLJ 381).

Having heard learned Counsel for the parties and after perusing the entire record, this Court is of the opinion that in pursuance of definition of divorced woman, it is bounden duty of the husband to prove in Court by adducing cogent and reliable evidence that he had divorced his wife in accordance with Muslim law especially when the wife is not accepting the divorce and denies the factum of giving divorce to her by her husband. Section 2(a) of (The) Muslim Women (Protection of Rights on Divorce) Act, 1986 is defined as under:--

"2, Definition.-- In this Act, unless the context otherwise requires--

(a) "Divorced woman" means a Muslim woman who married according to Muslim Law, and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law."

In the present case applicant/wife filed an application under Section 125, Cr.PC for grant of maintenance. In reply to this application, non-applicant/husband submitted in Paragraph 2 that in August, 1997, he had given divorce to the applicant/wife according to Muslim Law. Thereafter, he has filed written application on 1-5-1998, in which he has mentioned that he has pronounced oral divorce to his wife and also given divorce in writing before the Trial Court and has no relations with her. The Trial Court, has not considered this aspect of divorce as stated by the non-applicant/husband in his reply as well as in the application dated 1-5-1998. Learned Lower Revisional Court, has considered this pleading of the husband in Paragraph 2 of his reply dated 2-9-1998 and application dated 1-5-1998 holding that the non-applicant/husband divorced the applicant by submitting the application on 1-5-1998. Learned Revisional Court has failed to consider whether the divorce was given in accordance with the Muslim Law. It is pertinent to note that non-applicant/husband neither examined himself in Court as a witness nor given any opportunity to cross-examine to the applicant/wife. He has not examined any other witness in his favour in Court for establishing his case by adducing evidence. As a matter of fact, in the entire case, there is no evidence led by the husband to prove his case. A mere pleading as mentioned in paragraph 2 of his reply or filing an application about pronouncement or declaration of divorce, would not sufficient to establish that non-applicant/husband has given divorce to the applicant/wife in accordance with the Muslim Law as embodied in Section 2(1)(a) of the Muslim Woman Act.

The fact is also very important and noticeable that the wife/applicant served legal notice dated 2-12-1997, Exh. P-1, its acknowledgment is Exh. P-2 by which she demanded maintenance @ Rs. 2,000/- per month. This notice was duly received by the non-applicant/husband and also admitted the receipt of notice in Paragraph 8 of the reply submitted on 2-9-1998. When the non-applicant husband received notice on 2-12-1997, why he had not given intimation of divorce and reply to this notice informing that the applicant/wife was already divorced in the month of August, 97 and as such now she is not entitled for any maintenance except in accordance with the Provisions of Muslim Women Act.

In the present case, averments of the husband about giving divorce to the applicant/wife, has been denied by the applicant in her Court statement. In Paragraph 8 of her witness Moolchand (A.W. 3) also not accepted the suggestions given to him by the learned Counsel for the applicant about divorce in accordance with Muslim Law. The denial has also been made by Sakir (A.W. 4) son of the applicant and non-applicant. Therefore, it was for the non-applicant/husband to establish by adducing evidence in Court that he had given divorce to his wife/applicant in accordance with Muslim Law. Merely mentioning of the fact in the reply to the application under Section 125, Cr.PC as well as filing an application on 1 -5-1998 in Court, would not be sufficient to establish the fact that non-applicant/husband has given divorce to the applicant/wife in accordance with Muslim Law and the applicant would be treated as divorced muslim woman. An application dated 1-5-1998 filed by the non-applicant/husband saying that he has given divorce to his wife orally and also given divorce in writing before the Court, this has been denied by the applicant/wife by filing the reply dated 11-7-1998. Under this situation, the applicant should have appeared in the witness-box and should have given evidence before the Court about the factum of oral pronouncement of divorce as well as written divorce, submitted before the Trial Court on 1-5-1998. This application has not been proved in Court by examining the husband himself.

Apart from this in reply dated 2-9-98 to the application filed under Section 125, Cr.PC, non-applicant/husband in Paragraph 2 has mentioned about oral divorce given to his wife in the month of August, 1997 but he has nowhere mentioned in the entire reply that he himself has appeared before the Trial Court and submitted an application about written divorce given to his wife.

Learned Counsel for the applicant placed reliance on the judgment of the Supreme Court in the case of Danial Latifi (supra). This judgment has no bearing in the facts and circumstances of the case. In this judgment the Supreme Court has considered whether Provisions of Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act are constitutionally valid under Articles 14, 15 and 12 of the Constitution of India. Counsel for the applicant and non-applicant have also relied on number of decisions as mentioned above, but they do not have bearing in the facts and circumstances of the case because in all these judgments Section 2(1)(a) of the Muslim Women Act, the question of defining 'Muslim Woman' was not involved. In the cases relied on by the Counsel for the non-applicant, there was no dispute raised by the wife that she was not divorcee and no question was involved whether the husband had given divorce to his wife in accordance with Mohammedan Law.

Learned Lower Revisional Court has failed to consider that the non-applicant/husband has failed to establish that applicant/wife has been given divorce by him in accordance with Muslim Law. For this purpose, non-applicant/husband neither examined him in Court nor adduced any evidence. In absence of this, it cannot be said that the applicant/wife acquired status of divorced woman and, therefore, her application under Section 125, Cr.PC was maintainable only from the period of filing the application till the date of giving divorce and for iddat period.

In view of the aforesaid factual and legal analysis, the order passed by the Revisional Court is set aside resulting into restoration of the order of maintenance passed by the Trial Court on 25-7-2000.

In the terms indicted above, this revision stands allowed with no orders as to costs.

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