JUDGMENT C.A. Rahim, J.
1. This revision has been directed against the order of Judge Family Court, Allahabad dated 13.6.1997 in Case No. 491 of 1991 under Section 125 Cr. P.C. awarding Rs. 350/- per month as maintenance allowance for the period commencing from 6.4.1989 to 29.10.1991 and for a further period of three months thirteen days, i.e. the period of Iddat.
2. The order has been challenged on the ground that it is not maintainable in view of Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short Muslim Women Act). He has referred the case of Mohammad Umar Khan v. Gulshan Begum & Anr., Criminal Revision No. 503 of 1989 decided on 28.2.1991 by Hon. B.M. Lai, J. as he was sitting singly in Madhya Pradesh High Court at that time, wherein it has been held that no proof is required to prove the Talaq as per Section 310 of Mulla's Mohammedan Laws and hence application by the wife for interim maintenance is not tenable.
3. In that case the applicant-husband appeared before the Court after receipt of the notice in December, 1983 with the plea that he had divorced the respondent-wife in the month of July, 1984 (sic. 1983) orally and thereafter in writing. It was contended that whether Talaq had taken place or not is required to be proved by evidence. The Court referred paragraph 310 (not to be called as Section 27 since Mulla's Mohammedan Laws is not enactment) where it is stated that Talaq may be effected, (i) orally or (ii) by a written document called Talaqnama. After quoting the provisions the Court held :
"In view of this provision, no evidence is required to prove Talaq as the divorce by husband is complete just by utterance of words 'Talaq', Talaq, Talaq' thrice and the presence of a third person is not necessary. In this view of the matter, there is no option to the wife to challenge Talaq. This being so, the application made and filed is not maintainable."
It was also held that the applicant-husband has not declared by any affidavit or otherwise, whether jointly or separately, that they would prefer to be governed by Sections 125 to 128, Cr. P.C. There is force in the submission that provisions of Section 125, Cr. P.C. is not applicable in view of Section 5 of the Muslim Women Act.
4. After quoting the provisions referred to above Shri D.F. Mulla in his book "Principles of Mohammedan Law" on the same page has referred some cases wherefrom it appears that for tine purpose of maintenance it is necessary to communicate the fact of divorce to the wife. He has referred two cases, namely, Ma Mi & Anr. v. Kallandar Ammal, (1927) 54 Indian Appeal, page 61 and the case of Abdul Quadir v. Aziza Bee, (1944) 1, Madras Law Journal, page 17, wherein it has been held by Madras High Court that for the purpose of her alimony it is necessary mat it should come to her knowledge and her alimony may continue till she is informed of the divorce.
5. In another decision of Ahmad Quasim v. Khatoon, (1932) 59 Calcutta 833 it has been held that in case of oral talaq communication may be necessary for certain purpose connected with dower, maintenance etc. So it is necessary not only to prove that Talaq was effected orally or in writing against the wife but also to prove that it was duly communicated.
6. A divorce terminates certain obligations of the husband towards his wife. So it is against the principles of natural justice that her rights would be abrogated without her knowledge on the commission of act on which it depends.
7. Learned Counsel's plea that when Talaq was effected on 6.10.1988 so the wife was not entitled to any maintenance from that date, cannot be held to be correct, in view of the fact that it was communicated to the wife on 29.10.1991. So I do not find that {he order of the Judge, Family Court in respect of the maintenance, allowed to the respondent till 29.10.1991, is illegal.
8. The next point is whether Section 5 of the Muslim Women Act disentitled the respondent to receive maintenance under the provisions of the Criminal Procedure Code. The argument is that after the divorce a Muslim lady is not entitled to any maintenance under Section 125, Cr. P.C. unless condition mentioned in Section 5 of the Muslim Women Act is fulfilled. The decision of Mohammad Umar Khan's case (supra) is also on the same line.
9. The matter is totally misconceived which is clear from the section itself. In Section 3 of the Muslim Women Act it has been stated that a divorced woman shall be entitled to receive maintenance during the period of Iddat from her husband. In the preamble of the Act it has been mentioned that it was enacted to protect the rights of Muslim Women who have been divorced by or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto. So it has no connection with the rights of the Muslim woman who was not divorced or until the period she was not divorced. Section 3 is clear that for the purpose of maintenance during Iddat period only a Muslim women shall get protection under this Act. In other words for the purpose of obtaining maintenance from her husband till the date of divorce no provision has been made in the said Act. This is for the reasons that till that date provisions of Criminal Procedure Code would be applicable. Accordingly for the purpose of receiving maintenance for Iddat period and for other purposes a divorced Muslim woman should seek protection of this Act and while doing so Section 5 of the Act would come to play. It has no connection with the entitlement of maintenance allowance of a Muslim lady till she was divorced.
10. So I find that Section 5 of the Act has no application in the instant case for the purpose of receiving maintenance allowance from 6.4.1989 to 29.10.1991. But for the maintenance of Iddat period the learned Magistrate was not within its power to grant it under the provisions of the Criminal Procedure Code. Hence that part of the order does not seem to be proper.
11. Since only points of law are involved, I do not consider that by issuing notice to the other side the matter is required to be delayed. So without issuing notice, to avoid delay, the matter is taken up for hearing and decided accordingly.
12. In the result, the revision is allowed in part. The order allowing maintenance to the respondent at the rate of Rs. 350/- per month for the period commencing from 6.4.1989 to 29.10.1991 is hereby affirmed. The maintenance allowance allowed for the Iddat period is hereby set aside.
With the above observations, the revision is disposed of.