Cri. Writ Petn. No. 176 of 1991. Case: Shahadabi M. Isak Vs Abdul Ajij Abdul Latif and others. Bombay High Court

Case NumberCri. Writ Petn. No. 176 of 1991
Party NameShahadabi M. Isak Vs Abdul Ajij Abdul Latif and others
CounselFor Appellant: V. J. Dixit, Advocate and For Respondents: W. J. Shaikh and Mohd. Mustaffa Ahmed Momin, Advocates
JudgesB. N. Deshmukh, J.
IssueMuslim Women (Protection of Rights on Divorce) Act (25 of 1986) - Section 3
Citation1996 CriLJ 1812
Judgement DateJanuary 25, 1996
CourtBombay High Court

Order:

(Aurangabad Bench)

  1. This writ petition arises out of an application filed by the petitioner under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The learned trial Judge has held that the wife i.e. petitioner-Shahadabi, is entitled for Mehar amount for maintenance during Iddat period. The learned trial Judge allowed the application of the present petitioner-wife and directed the husband to pay a sum of Rs. 7000/- towards Mehar amount and also pay Rs. 900 towards Iddat period maintenance. The husband was further directed to return the articles which he had received at the time of marriage totalling Rs. 7,360/-. It was, further, directed that the husband shall pay Rs. 5000/- towards future maintenance. The applicant was granted cost of Rs. 300/-.

  2. The order passed by the learned trial Judge was challenged in Criminal Revision Application before the learned Sessions Judge at Jalgaon.

  3. The learned Sessions Judge was pleased to allow Revision filed by the husband and the order passed by the learned trial Judge against the husband was set aside.

  4. The present petitioner-wife has, therefore, filed this Criminal Writ Petition, challenging the order passed by the learned Sessions Judge.

  5. Shri Dixit, learned counsel for the petitioner contended that the lower Court was correct in granting the Mehar amount and also further amounts to the petitioner-wife. According to him, the learned Sessions Judge has misdirected himself in reading the recitals of the so called Kabuliyat a deed of divorce (Exh. 42). He has contended that after the husband gave Talaq, (Exh. 42) was obtained from the wife. According to him, the learned Sessions Judge considered the Kabuliyat (a deed of divorce)/Exh. 42 as a document by which the divorce was obtained by the parties.

  6. Shri Mohammed Mustaffa Ahmed Momin, learned counsel for the respondent No. 1, on the contrary, contended that Kabuliyat (Exh. 42) is a peculiar mode of obtaining divorce under the provisions of the Mahomedan Law. According to him, by this Kabuliyat (Exh. 42) dated 12-8-1976, the dissolution of marriage has been given an effect to by the parties, by agreement. Such an agreement is lawful under the provisions of Mohomedan Law as it provides for a dissolution of marriage by agreement in the form of 'Khula' or 'Mubarat'. Section 319, Mulla's Principles of Mohomedan Law (Eighteenth Edition) by Hidayatullah, provides for divorce by Khula and Mubarat. Sub-Section (1) of the said Section provides that a marriage may be dissolved not only by Talaq, which is the arbitrary act of the husband, but also by agreement between the husband and the wife. A dissolution of marriage by agreement may take form of Khula or Mubarat. Sub-Section (2) provides that a divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mahr (dower) and other rights, or make any other agreement for the benefit of the husband. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.

  7. A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from his marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-i-bain), and its operation is not postponed until execution of the Khulanama (deed of Khula). Sub-Section (3) deals with Mubarat. A mubarat divorce like Khula, is a dissolution of marriage by agreement, but there is a different between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khula. When the aversion is mutual, and both the sides desires a separation, the transaction is called mubarat. The offer in a mubarat divorce...

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