Law: Criminal Procedure Code, 1898

Section: 488

S. 488-Pronouncement of divorce by Muslim husband in open Court---Should be given effect to while passing order-No express demand for maintenance of minor children-Order for their maintenance can still be passed if there be clear assertion by wife before Court about their non -maintenance by father.   Date of hearing: 3rd May 1960.     JUDGMENT   This is a reference by Mr. M. A. Kazi, the Additional Sessions Judge of Karachi, making a recommendation that an order dated 12-12-59 for a wife's maintenance passed by Mrs. Suraiya Ahmad Pai, Additional City Magistrate, Karachi, be modified for the reasons that the learned Magistrate has not given effect to the pronouncement of divorce by the husband.   The wife had alleged that she had been treated cruelly and turned out of her houseby her husband Muhammad Nabi Khan, who resisted the application by denying the allegations and also by asserting that he had divorced his wife on 17-10-1958. The application was made on 8-10-1959. While appearing as a witness on 17-11-1959 during the proceedings the husband Muhammad Nabi Khan, again asserted the same position. The learned Magistrate did not believe the assertion of the husband regarding the divorce on 17-10-1958, and also refused to give effect to the pronouncement of divorce in open Court on 17-11-1959 on the ground that "it is not within the ambit of my power either to confirm or reject the plea". The learned Additional Sessions Judge has rightly observed that under Islamic Shariat Law the learned Magistrate should have given effect to the pronouncement of divorce in open Court, even though she did not believe the assertion of the husband regarding the earlier divorce on 17-10-1958. This proposition is so well -established that it is not necessary at all to refer to any authorities on the subject. It is clear that from 17-11-1959 the wife is not at all entitled to maintenance except for the period of Iddat. I therefore accept the recommendation of the learned Additional Session Judge to the effect that the wife be granted maintenance from the date of application to 17-11-1959 and beyond that for the period of Iddat, as the divorce…