ORDER
S.C. Vyas, J.
1. The applicant has preferred this revision challenging the order passed by Second Additional Sessions Judge, Garoth, Distt. Mandsaur in Criminal Revision No. 112/2005 on dated 2.7.2005 whereby the criminal revision preferred by respondent No. 1 Anisa Bee regarding granting maintenance was accepted and an order of payment of maintenance @ Rs. 600 per month under Section 125 of the Code of Criminal Procedure has been passed.
2. The respondent No. 1 Anisa Bee is the wife of applicant and respondent Nos. 2 and 3 are the children out of the wedlock of the applicant and respondent No. 1. Respondent Nos. 4 and 5 are the parents of applicant. The marriage between applicant and respondent No. 1 was solemnized around 8 years back as per Muslim rituals. Respondent No. 1 filed an application under Section 125 of the Code of Criminal Procedure before the JMFC, Garoth which was registered as M. Cr. C. No. 11/1998. After taking evidence of both the parties that case was finally decided by the learned Magistrate on 8.2.2005. it was held by the learned Magistrate that respondent No. I was divorced by the applicant by letter Ex. D-1 and. therefore, the respondent No. I is not entitled for any maintenance under Section 125 of the Code of Criminal Procedure, however, maintenance @ Rs. 1000 per month was granted for respondent Nos. 2 and 3.
3. Both the parties felt aggrieved by this order passed by learned Magistrate preferred revision petitions before learned Additional Sessions Judge, Garoth which were registered as Criminal Revision Nos. 76/2005 and 112/2005 respectively. The applicant challenged the order of granting maintenance to the two boys in his revision whereas respondent No. 1 challenged the order of refusal of granting maintenance to her by the learned Magistrate and for enhancement for the amount of maintenance granted in favour of 2 sons. The revision petition preferred by the applicant as well as the prayer for enhancement of amount granted by way of maintenance in favour respondent Nos. 2 and 3 were not allowed by the learned Additional Sessions Judge but the learned Additional Sessions Judge found that respondent No. 1 was not legally divorced by the applicant and, therefore, she is entitled for maintenance under Section 125 of the Code of Criminal Procedure. Therefore, the order of maintenance @ Rs. 600 per month was passed by the learned Additional Sessions Judge. This order impugned is challenged in this revision by husband applicant.
4. Mr. R.R. Trivedi, learned Counsel for the applicant contended that applicant submitted Talaknama Ex.
D-1 before the learned Magistrate. The Talaknama was communicated to respondent No. 2 by sending registered letter Ex. D-2, but respondent No. 2 refused to receive the same which came back to the applicant undelivered. Those documents are sufficient for giving a finding in favour of the applicant that he had really divorced his wife by sending letter of divorce by post, He has further submitted that under the provision of Muslim Law, such form of divorce is permissible and a husband can divorce his wife even in her absence or even in absence of any witness.
5. Learned Counsel for the respondent Nos. 1 to 3 Mr. R.L. Patidar, opposed the arguments advanced by M. Trivedi, Advocate and submitted that it was never communicated by the applicant to respondent No. 1 that he had divorced her, He has further submitted that no averments regarding so called divorce were made by the applicant in the reply filed by him before the learned Magistrate, Nothing was added in the said reply even by way of amendment so it was never a case of applicant before the learned Magistrate that he had divorced his wife. Only while the evidence was being adduced in the case, applicant tried to introduce the plea of divorce which has been rightly negatived by the learned Additional Sessions Judge, Mr. Patidar placed reliance upon the case of Shumim Ara v. State of U.P. V (2002) SLT 538 : IV (2002) CCR 105 (SC) : AIR 2002 SC 3551. Another case cited by Mr. Patidar, Advocate is a Full Bench judgment of this Court in the case of Wall Mohammad and Ors. v. Batulbal and Ors. (2003) 2 MPLJ 513. On the basis of these two judgments M, Patidar, Advocate argued that husband was required to prove that he has given divorce to his wife in accordance to the provision of Mohammedan Law and if he tails to prove such divorce then the wife will continue to be entitled for maintenance as per the provision of Code of Criminal Procedure,
6. Mr. Trivedi, learned Counsel for the applicant placed the reliance on the judgment passed by this Court in the matter of Dr. Abdul Rashid v. Mst. Farida 1994 JLJ
381 and submitted that when the case was pending before the learned Magistrate then application was filed by husband before the Magistrate to the effect that he had divorced his wife and, therefore, from the date of such application respondent No. I is not entitled to get any maintenance under the provision of Section 125 of the Code of Criminal Procedure as held by this Court in Abdul Rashid”s case.
7. I have considered the arguments advanced by both rival parties and perused the record of the Trial Court as well as of the Court of Additional Sessions Judge.
8. Respondent No. 1 wife in the application filed before the learned Magistrate had made averments to the effect that her husband applicant in the present revision, ill-treated her for demand of dowry and ultimately ousted her from his home along with two children and, therefore, under compulsion she was residing with her father and then made an application before the learned Magistrate for maintenance. In the reply husband applicant refuted the allegations made in the application filed by wife respondent No. 1 though ultimately cancelled but in special plea even it was mentioned that the husband applicant is ready and prepared to keep his wife and children if the wife apologizes for the act done by her. This paragraph though crossed indicated that at the time of filing of the reply there was no whisper regarding any act of divorce by the husband to the wife. During inquiry in the matter on 10.11.1998 an application was submitted by applicant husband before learned Magistrate to the effect that he had divorced his wife on 1st November, 1998 and communicated this information to his wife by the registered post. He submitted Exs. D-1 and D-2 along with this application, but even then no amendments in the reply was prayed. The application filed by the applicant was duly replied by the wife, she denied the so-called divorce and in her reply contended that no such letter of divorce was ever communicated to her even by registered post.
9. During inquiry applicant examined himself and deposed that he divorced his wife and informed her by Ex. D-1. He has also said that letter Ex. D-2 was also sent by him which came back undelivered as respondent No. 1 refused to receive the same. Respondent No. 1 wife Anisa Bee categorically denied regarding the fact of refusal of any letter by her, thereafter it was necessary for the husband applicant to examine the concerning postman or some other witnesses to show that the wife has actually refused to receive the letter. Even if we presume for the sake of argument that wife had refused to receive the letter sent by applicant husband then also there is nothing to presume that wife Anisa Bee was otherwise communicated the fact that she was divorced by her husband. As the letter was not opened by her, therefore, by that letter the information regarding giving divorce was not communicated to him. Any proof of communication of the fact of giving divorce to the wife has not been given by applicant and there is nothing to infer that the applicant had really given divorce to his wife.
10. Ex. D-1 is another letter. This letter is addressed to the father of respondent No. 1, there is nothing on record to indicate that this letter was ever sent to anyone as original letter has been filed by the applicant himself, therefore, it can safely be said that this letter was also not sent to the father of respondent No. 1. Therefore, neither by Ex.
D-1 nor by Ex. D-2, any information regarding divorce was received by respondent No. 1.
11. Applicant husband in his statement has said nothing as to why he has given divorce to his wife. There should be some reasonable cause for giving divorce to his wife of a Muslim husband. Even at the time of thinking of giving divorce some proceedings regarding reconciliation between the parties and pacifying the dispute between them should be proceeded with at the instance of the husband but the applicant husband had said nothing in this regard also. Hon’ble Apex Court in the case of Shamim Ara v. State of U.P. (supra), after considering the provisions of Para 310 of the Mulla’s Principles of Muhammadan Law has considered in detailed as to how Talaq can be given by a husband to his wife. As per Para 310 of Mulla’s Principles of Muhammadan Law Talaq may be in oral or in writing in case of oral Talaq the intention of giving Talaq must be pronounced by husband. In case of written Talaq the written Talaqnama is required to be sent to the wife. The Hon’ble Supreme Court held that:
The correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbitersone from the wife’s family and the other from the husband’s; if the attempts fail, Talaq may be effected. In Rakia Khatim’s case, the Division Bench stated that the correct law of Talaq, as ordained by Holy Quran, is: (i) that ‘talaq’ must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his.
In the case before Hon’ble Supreme Court the plea of Talaq was taken by husband in his written statement and it was pleaded that wife has been divorced on 11.7.1987. This part in his application was not found sufficient to draw conclusion in favour of Talak.
12. In the present case also when the husband has not even made any averment in his reply by way of amendment and the said Talaqnama was never communicated to the wife then it is hard to conclude that respondent No. 1 was really given Talak by the applicant.
13. Full Bench of our High Court in the Case Wali Mohammad v. Batulbai (supra), has held that:
12. Coming to question No. (iii), the answer to the question is contained in the Supreme Court decision in the case of Shamim Ara (supra), wherein it was held that Talaq to be effective has to be pronounced. The term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, to declare, to utter and to articulate. Their Lordships further cautioned that mere plea taken in the written statement of a divorce having been pronounced some time in the past, cannot be treated as effectuating Talaq on the date of delivery of the copy of the written statement to the wife. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of Talaq by the husband on the wife on the date of filing of written statement in the Court followed by delivery of a copy thereof to the wife. It was, thus, held that the respondent-husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law.
14. The law on the point has clearly been laid down by the Hon’ble Apex Court and our High Court has also followed the same in many cases. This law applies to the facts of the present case also with full force and, therefore, in the facts and circumstances of the present case it is held that applicant has not given divorce to his wife and, therefore, wife respondent No. 1 shall continue to be entitled for a maintenance under Section 125 of the Code of Criminal Procedure as ordered by learned Additional Sessions Judge.
15. Dr. Abdul Rashid v. Mst. Farida (supra), which is cited by learned Counsel for the applicant is a judgment of a case in which it was established that husband has given divorce to his wife and, therefore, it was held that wife is not entitled for maintenance under Section 125 of the Code of Criminal Procedure. On facts this case is distinguishable.
16. Consequently, the revision petition filed by the applicant fails and is dismissed.