HC quashes Talaq, grants maintenance to wife

Mumbai, May 30: In a significant order, Bombay High Court has set aside divorce given by a Muslim man, saying there was no valid reason to justify it, and ordered that he pay the wife maintenance under Criminal Procedure Code (CrPC).
Under Muslim Women (Protection of Rights on Divorce) Act, 1986, Muslim husband is liable to pay maintenance for about three months called `Iddat', and not thereafter. Once divorced, Muslim woman can not get maintenance under section 125 of Criminal Procedure Code.
But in the present case, High Court held that the Talaq itself was not legally valid, so husband must pay maintenance as per section 125.
The applicant in this case, Parveen Ismail Shaikh, was married to Ismail Shaikh in 1983. According to her, four years after the marriage, Ismail started ill-treating her. On a few occasions she was beaten up, and finally he drove her out of the house along with her daughter on June 23, 1994.
When the next day her father brought her back, Ismail did not allow them to enter. On June 28, he gave her Talaq by executing a deed in the presence of Kazi and two witnesses, and sent her a copy of `Talaqnama' by post.
She then applied for maintenance under CrPC. In the hearing before Judicial Magistrate at Pathardi, district Ahmednagar, Ismail alleged that Parveen had left the house of her own will, and subsequently she had an affair with another man.
Magistrate upheld the Talaq, and denied her maintenance.
Ahmednagar Sessions Court also took the view that she was not entitled to maintenance beyond Iddat period (90 days), since she had been given a proper Talaq.
But the Aurangabad bench of Bombay High Court differed with lower courts. Justice V R Kingaonkar observed in his judgement early this month that a Talaq, as per Muslim law, must have a valid reason.
As per Ismail's own statement, there was no marital discord till their daughter was born. "If that was so, then there is no reason for a sudden change in her attitude," judge said. "His version does not reveal reasonable cause for divorce," Justice Kingaonkar concluded.
Secondly, there was no attempt to reconciliate before the Talaq, said the judge. Relying on the law laid down by Supreme Court, judge noted that there should be an attempt to resolve the dispute between the couple through arbiters, but no such attempt was ever made by Ismail.
Reversing lower courts' decisions, High Court directed Ismail to pay Parveen maintenance of Rs 1000 per month -- from the date of her application -- and cost of Rs 2000 in addition.
Agencies
Posted online: Friday , May 30, 2008 at 04:07:26Updated: Friday , May 30, 2008 at 04:07:26 http://www.expressindia.com