JUDGMENT 1. - This miscellaneous petition is directed against the order dated December 3, 1988, passed by the Sessions Judge, Sirohi, by which the learned Sessions Judge dismissed the revision petition filed by the petitioner, up-held the order dated July 22, 1987, passed by the Munsif and Judicial Magistrate, Sirohi, by which the learned Magistrate awarded maintenance to Smt. Ameena. 2. Mst. Ameena filed an application in the Court of the Munsif and Judicial Magistrate, First Class, Sirohi, under section 125 Cr.PC against her husband Ahmad for the grant of maintenance. It was averred in the application that she was married to Ahmad about twenty-two years before at Sheoganj. Slie lived with her husband Ahmad for about two years at Ahmedabad and out of this wed-lock, a son Hanif was born. She was turned-out from the house by her husband after two years and was given 'Talak by her husband and since then she is living separately was doing the labour work in order to maintain herself and her son, but now she has become old & cannot do the labour work & is unable to maintain herself and, therefore, the maintenance allowance of Rs. 350/- per month may be granted to her from the husband, who is earning about Rs. 650/- per month as pay from the Employees State Insurance Corporation, Ahmedabad, and he also owns a four-storeyed building at Ahmedabad, from which he gets Rs. 1000/- per month as rent. This application was contested by the husband. The allegation of ill-treatment and giving 'Talak' by him were denied by the husband. On the contrary, the existence of the marriage was pleaded and it was further averred that she was never turned-out from the house by him, rather she herself left the house on her own accord and, she is living with her son, who is earning about Rs. 400/- per month and, therefore, she is not entitled for any maintenance. Both the parties led their evidence before the trial Court. Mst. Ameena examined herself as AW 1 and produced Hanif (her son) as AW 2 and Rattaji as AW 3. The non-applicant examined himself as NAW 1 and did not lead any other evidence. 400/- per month and, therefore, she is not entitled for any maintenance. Both the parties led their evidence before the trial Court. Mst. Ameena examined herself as AW 1 and produced Hanif (her son) as AW 2 and Rattaji as AW 3. The non-applicant examined himself as NAW 1 and did not lead any other evidence. The learned Magistrate, after trial, by his judgment dated July 22, 1987, allowed the application under Section 125 Cr.PC filed by the applicant and held that the husband has sufficient means and has neglected and refused to maintain his wife, who is unable to maintain herself and, therefore, awarded the maintenance of Rs. 200/- per month from the date of the order. Dissatisfied with the order dated July 22, 1987, granting maintenance, the husband preferred a revision petition before the learned Sessions Judge, Sirohi, who, by his judgment dated December 3, 1988, dismissed the revision petition filed by the petitioner It is against this judgment dated December 3, 1988, that the present miscellaneous petition has been filed by the petitioner. 3. It is contended by the learned counsel for the petitioner that the non-petitioner came with a specific case that she was divorced by her husband and as such as per the Muslim Women (Protection of Rights of Divorced Women) Act, 1986, she is entitled for the maintenance only for the 'Iddat' period and is not entitled to maintenance thereafter. In support of its case, the learned counsel for the petitioner has placed reliance over the judgment of this Court in Abid Ali v. Mst. Razia Begum and others (1988 RCC 51 ) and Abid Hamid v. Mst. Asia, 1991 Cr LR (Raj) 42) . 4. Nobody appears on behalf of the non-petitioner Mst. Ameena (wife) inspite of service. 5. As per the Act of 1986, a divorced Muslim woman is not entitled to get the maintenance from her former husband after the Iddat period as she loses her right in view of the provisions of Section 3 (l)(a) of the Act. The Act of 1986 has completely obliterated the right of maintenance to a divorced Muslim woman and the husband, who has divorced his wife, is not under any obligation to pay maintenance to such wife after the period of Iddat. 6. The Act of 1986 has completely obliterated the right of maintenance to a divorced Muslim woman and the husband, who has divorced his wife, is not under any obligation to pay maintenance to such wife after the period of Iddat. 6. The real question that has to be seen in the present case is : where there the 'Talak' stands proved in the present case ? The applicant came with the specific case that she was given divorce while the husband came with a specific case that he never gave divorce to the wife. Though the dispute between the parties was that whether the Talak between the parties took place or not, but the learned Magistrate did not frame any issue on this point though there was a specific pleading of both the parties and both the parties led evidence on this point. Though no specific issue was framed by the trial Court, but both the parties went with the trial with full knowledge that the question of Talak is under consideration and both the parties adduced evidence leading to that point and fully availed the opportunities. As there is sufficient evidence on record and, therefore, the question whether the Talak between the parties took place or not, can be decided at this stage and, therefore, I propose to decide the question whether the Talak was given by Ahmad to Ameena or not? 7. AW 1 Mst. Ameena has stated that she was turned out from the house after giving beating by the husband and thereafter her husband gave her Talak and she came to Sheoganj at her parental house. In the cross-examination, she denied the suggestion that her husband did not give 'Talak' to her and she left the house at her own accord. She has stated that she was given Talak by the husband three times in writing at an interval of one month each, which was sent by the husband through post, which letters were returned by her. Once the Talaknama was returned by her father while twice the same were returned by her. She has further stated that this Talaknama was sent by her husband about ten years ago. In the application under Section 125 Cr. Once the Talaknama was returned by her father while twice the same were returned by her. She has further stated that this Talaknama was sent by her husband about ten years ago. In the application under Section 125 Cr. PC, she has stated that she was turned out from the house after giving Talak and the same is the version given by her in the examination-in-chief while in the cross-examination she has stated that the Talaknama was sent by the husband through post, which was returned by her. This evidence of the applicant regarding giving of Talak, does not inspire confidence and from this evidence, giving of Talak by the husband Ahmad to the wife Ameena does not stand proved. 8. There is another evidence of Hanif Khan AW 2 the son of the applicant who has stated that his father has given Talak to his mother, who is living in Sheoganj. This witness was not present when the Talak was given and at the time of the alleged Talak, this witness was not even born. According to AW 1 Mst. Ameena, she was given Talak by her husband when she left Ahmedabad and at that time she was pregnant. This witness was not even born when the Talak was given and, therefore, the evidence of this witness, on this point, is of no consequence. 9. Then remains the evidence of NAW 1 Ahmad, the husband himself, who has specifically stated that he never gave Talak to the applicant Mst. Ameena and she left the house at her own accord and he is still ready to keep her with him provided she comes and stay with him. It is, no doubt, true that any Muslim of sound mind, who has attained puberty, can divorce his wife whenever he desires without assigning any cause and the Talak can be effected orally or by a written document and no particular form or words have been prescribed for effecting the Talak, but effecting of Talak has to be proved by some positive evidence either written or ocular. But in the present case, Mst. Ameena failed to prove the effecting of Talak by Ahmad and when Mst. Ameena failed to prove the effecting of Talak by Ahmad, the husband, now, cannot be allowed to say that the applicant came with a case that she was divorced by her husband. But in the present case, Mst. Ameena failed to prove the effecting of Talak by Ahmad and when Mst. Ameena failed to prove the effecting of Talak by Ahmad, the husband, now, cannot be allowed to say that the applicant came with a case that she was divorced by her husband. The husband cannot be allowed to approbrate and reprobated the same time. 10. Thus, from the evidence, produced by both the parties, the giving of Talak by the husband to the wife Smt. Ameena does not stand proved and the marriage between the parties still subsists. 11. Now, in these circumstances, it has to be seen whether the husband has neglected or refused to maintain the wife and whether the wife is entitled for any maintenance ? Both the Courts below came to the conclusion that Mst. Ameena was never ill-treated by her husband nor was any cruelty acted upon her by the husband. In the absence of any ill-treatment or cruelty; whether the wife has sufficient reasons to live separately from the husband. It is true that from the evidence produced by both the parties, any physical cruelty has not been proved against the husband, but it is an admitted position that at the time when Mst Ameena left the house of her husband, at that time she was pregnant and was at an advance stage of pregnancy and the son Habib was born at her parent's house The husband did not take care of his wife who was pregnant at that time nor did he take care of the well-being of the wife and the child, who was born to her after she left the house. He even did not care to know about the conditions in which they were living. Though neglect or refusal is the foundation for the award of the maintenance under Section 125 Cr. PC, but the neglect or refusal on the part of the husband may, in some cases, be direct and in some cases it may be implicit. The husband has a duty to maintain his wife and children and failure or omission on the part of the husband to take care of his wife or child, in the facts and circumstances of the case, amounts to neglect and refusal. The husband has a duty to maintain his wife and children and failure or omission on the part of the husband to take care of his wife or child, in the facts and circumstances of the case, amounts to neglect and refusal. A husband is expected to know about the well-being of his pregnant wife and to know about her conditions and if he fails or omits to discharge this function then it amounts to implicit negligence or refusal on his part. The offer made by the husband that he is ready to maintain his wife Mst. Ameena provided she comes and stays with him, does not appear to be a bona fide and genuine offer and appears to have been made by him in order to save himself from the payment of the maintenance allowance. If he was bona fide in his action then he could have approached her at the time when she left the husband and should have persuaded her for re-union, but he did not take care of her for sufficiently a long time and neglected her and when this application under Section 125 Cr. PC was moved, he came with the ground that he is ready to maintain her. This offer does not appear to be genuine. It is, thus, clear from the facts and circumstances of the case that the husband has neglected and refused to maintain the wife Mst. Ameena, who is unable to maintain her. Both the Courts below, in the facts and circumstances of the case, were justified in granting maintenance to Mst. Ameena. 12. In this view of the matter, I do not find any merit in the miscellaneous petition and the same is hereby dismissed.Petition dismissed. *******