JUDGMENT
N.P. Chapalgaonker, J.
1. Mehtabbi and her minor daughter aged 5 filed an application under section 125 of the Code of Criminal Procedure, 1973 against her husband Sk. Mohammad. When a notice was served on the respondent, the respondent husband filed a say contending therin that he has divorced applicant Mehtabbi on 23.12.1988 and, therefore, the application is not maintainable in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, Act of 1986).
2. In view of say of respondent, learned Magistrate did not feel it necessary to record the evidence and dismissed the application for maintenance vide his Order dated 17.7.1989. Criminal Revision No. 217 of 1990 filed by the petitioner challenging aforesaid order was also dismissed by the learned Additional Sessions Judge, Aurangabad by his Order dated 5.6.1990. This writ petition challenges these orders.
3. Though it is true that the powers under section 125 of the Code of Criminal Procedure will have to be exercised reading them alongwith the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the proposition that whenever a divorce is pleaded by the husband, the Magistrate should dismiss the application for maintenance without recording evidence is totally unsustainable in law. There is no presumption in favour of a divorce. When a party pleads that the divorce is given, the Magistrate is duty bound to record the evidence and thereupon test the varacity of the claim. The learned Magistrate appears to have also overlooked the relevant provisions of the Act of 1986. When a plea of divorce is taken as defence, Magistrate is also duty bound to see whether the maintenance for the Iddat period has been paid to the wife or not.
4. Section 3 of the Act of 1986 declares that a divorced woman is entitled for an amount equal to the sum of Mehr or dowry agreed to be paid to her at the time of marriage or any time according to the Muslim law and also to certain property mentioned in clause (3) of sub-section (1) of section 3. An application for the same has to be presented to the Magistrate. However, the occasion for making such an application would arise only when the factum of divorce is accepted by both spouses or is held to be proved by the competent court. In the instant case, petitioner- wife does not admit to have been divorced and, therefore, the learned Magistrate should have recorded the evidence of the parties and then give a finding in that respect. No evidence was recorded in the case.
5. It appears that a copy of the notice purported to have been issued by the advocate of the respondent No. 1 – husband was produced on record. The learned Magistrate, however, without formal proof, read contents of said notice and also the postal endorsement on the accompanying acknowledgement. This was not the correct course adopted by him. A copy of the notice issued by a party through an Advocate is not a public document and will have to be proved like any other document.
6. Learned Single Judge of this Court had taken a view that even if the oral divorce is not proved, if the divorce is pleaded by a Muslim husband in written statement, it can be taken to be a declaration of the divorce and the wife would be entitled only to the maintenance for the period of Iddat from the date of the written statement. Chandbi Ex W/o. Badesha Mujawar v. Bandesha s/o Balwant Mujawar, . It is well established principle of law that existence of a fact has to be first pleaded and then to be proved by reliable and cogent evidence to prove existence of said fact. Mere pleadings in written statement that respondent No. 1 has divorced petitioner by itself will not prove the factum of divorce and absolve the husband from proving divorce by cogent and reliable oral evidence. It is, therefore, erroneous to presume that if the divorce is pleaded by husband in the written statement in answer to an application under section 125 of the Code of Criminal Procedure, the oral evidence is not necessary and factum of such divorce can be presumed. The approach of the learned Magistrate is wholly untenable.
7. I, therefore, allow this writ petition, set aside the Order dated 17.7.1989 passed by the Jt. Judicial Magistrate, First Class, Paithan in Misc. Application No. 47 of 1988 and the order dated 5.6.1990 passed by the Additional Sessions Judge, Aurangabad in Criminal Revision No. 217 of 1989 and remand the matter to the Judicial Magistrate, First Class, Paithan, with a direction to permit parties to adduce the evidence and to dispose of the case according to law within a period of six month today.
8. In view of the judgment of this Court in Siraj Sahebji Mujawar v. Roshan Siraj Mujawar, , a right of Muslim child borne out of the dissolved wedlock is not affected by the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. The fact that the petitioner No. 2 is a child of respondent husband has not been denied. In this view of matter, respondent No. 1 to pay interim maintenance of Rs. 75/- per month from the date of this order to the petitioner No. 2. Rule is made absolute in the above terms.
