A. K. TRIVEDI, J. ( 1 ) HEARD Mr. B. P. Munshi, learned Advocate for petitioner. Mr. D. M. Shah, learned Advocate for respondent No. 1 and Ms. B. R. Gajjar, learned A. P. P. , for respondent No. 2 - State. ( 2 ) THE petitioner is a Mahomedan by religion and is the wife of respondent No. 1. The petitioner filed Misc. Criminal Appln. No. 1098 of 1990 in the Court of learned C. J. M. , Jamnagar under Sec. 125 of Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") claiming maintenance from the respondent No. 1 on the ground that the respondent No. 1 has neglected her and has refused to maintain her despite having sufficient means. That vide order, dated 16-3-1993 the learned C. J. M. , Jamnagar awarded amount of Rs. 350. 00 p. m. , to the petitioner by way of maintenance payable by the respondent No. 1 w. e. f. 24-7-1990. The Court has also awarded costs of Rs. 1001- to be paid by the respondent No. 1 to the petitioner. ( 3 ) THE respondent No. 1 carried the matter to the Sessions Court at Jamnagar by filing Criminal Revision Application No. 46 of 1993. That by order dated 16-6-1997 the learned Addl. Sessions Judge, Jamnagar allowed the revision application and set aside the above stated order of maintenance passed by the learned C. J. M. Jamnagar. Being aggrieved and dissatisfied by the said order of the learned Sessions judge, Jamnagar the petitioner has filed the present revision application. ( 4 ) MR. Munshi, learned Advocate appearing for the petitioner has taken me through the impugned judgment and orders which are produced at running pages 1 to 22 of the file and has urged that the learned Addl. Sessions Judge, Jamnagar has committed error of law by holding that respondent No. 1 having given "talaq" to the petitioner, the petitioner is not eligible to claim maintenance under Sec. 125 of the Code. It is also submitted by Mr. Munshi that the learned Addl. Sessions judge has disregarded the rule settled by this Court in the matter of Arab Ahmedia ahdulla v. Arab Bail Mohmuna Saiyadhhai and Ors. , reported in AIR 1988 Guj. It is also submitted by Mr. Munshi that the learned Addl. Sessions judge has disregarded the rule settled by this Court in the matter of Arab Ahmedia ahdulla v. Arab Bail Mohmuna Saiyadhhai and Ors. , reported in AIR 1988 Guj. 141 : 1988 (1) GLR 452 and has held that in the facts and circumstances of the case the petitioner-wife was not entitled to claim maintenance under Sec. 125 of the Code, which is contrary to the settled proposition of law and thereby the impugned judgment and order deserves to be quashed and set aside and the orders of the learned c. J. M. , Jamnagar, dated 16-3-1993 in the proceedings of Misc. Criminal Application no. 1098 of 1990 is required to be restored. Mr. D. M. Shah, learned Advocate appearing for respondent No. 1 has placed reliance on the observations made by the learned Addl. Sessions Judge in Para 11 of the impugned judgment to contend that no sooner there is a declaration of divorce before the Court, the Court has no jurisdiction to grant maintenance under Sec. 125 of the Code. That the divorced wife would be entitled to only maintenance and other benefits as provided under the provisions of Sec. 3 of the Muslim Women (Protection of Rights on Divorce) act, 1986 (hereinafter referred to as "the Muslim Women Act, 1986" ). Mr. Shah has attempted to support the impugned judgment by referring to the provisions of muslim Women Act, 1986. ( 5 ) IT may be noted that the Muslim Women Act, 1986 does not take away the rights which the Muslim woman was having either under the Personal Law or under the general law, i. e. . Secs. 125 to 128 of the Code. In other words, the Muslim woman. even after the "talaq" could claim maintenance from her former husband either under the provisions of Secs. 125 to 128 of Code, or under Sec. 3 (2) of the Muslim women Act, 1986, if she is otherwise entitled to claim the maintenance under the law. That. the provisions of Secs. 5 of Muslim Women Act, 1986 provide option to the parties, to be governed either under Secs. 125 to 128 of Code, or under Sec. 3 (2) of the Muslim women Act, 1986, if she is otherwise entitled to claim the maintenance under the law. That. the provisions of Secs. 5 of Muslim Women Act, 1986 provide option to the parties, to be governed either under Secs. 125 to 128 of the Code or under the provisions of special Statute, the Muslim Women Act, 1986 and as such the application filed by a divorced Muslim woman under Sec. 3 (2) of the Muslim women Act, 1986 could be disposed of by the Court by following the provisions of Secs. 125 to 128 of the Code. ( 6 ) THAT in the instant case. the respondent No. 1 -husband contested. th. e claim of maintenance as made by the petitioner-wife in the proceedings of Misc. Criminal application No. 1098 of 1990 by filing reply-Exh. 10, and contended that the petitioner-wife had left the matrimonial home without any just or reasonable cause, and as such, she was not entitled to claim maintenance. It was further:. contended that on demand of petitioner-wife, the; respondent NO. 1 -husband had givenher "talaq" on 21 -6-1990, in the presence, of witness, one Asaraf, Hasanbhai. and hasanbhai Bakalawala and thereby also the petitioner-wife, is not entitled to any maintenance from respondent No. 1-husband under the provisions of Muslim women Act, 1986. That during th. e trial, the respondent No. 1 -husband produced a sealed envelope with postal remarks of refused", Tha,t during the oral evidence of husband said envelope was opened in the Court and the document of "talaqnama" contained in the said envelope was taken, on record vide. Exh- 41. That Exh. 41 contained attestation by above stated two witnesses, however, the respondent No. 1-husband failed to examine the said attesting witnesses in the Court and also failed to produce any Other evidence to establish the factum of legal and valid "talaq" between the parties. That during the arguments, it was submitted on behalf of the respondent No. I-husband that the postal remarks of "refusal" on the registered article leads to the adverse inference against the petitioner-wife to the effect that same was received by her. That as such the Talaq was effected and as a divorced wife the petitioner-wife was not entitled to claim maintenance as provided under the Muslim Women Act, 1986. That as such the Talaq was effected and as a divorced wife the petitioner-wife was not entitled to claim maintenance as provided under the Muslim Women Act, 1986. That the trial Court has refused to accept the said submissions on two grounds. It is held by the trial Court that in the absence of evidence of attesting witnesses, the respondent No 1-husband has failed to prove the communication of legal and valid "talaq" to the petitioner-wife. Furthermore. the document of so-called "talaq-nama" Exh. 41 did not contain any averments regarding payment of "mahr" or "dower" to the petitioner-wife. That in the absence of any evidence to show that the respondent No. 1-husband has paid or had agreed to pay any amount towards reasonable provision and maintenance of the wife and the agreed amount of mahr or dower, the claim of the respondent No. 1-husband regarding giving Talaq to the petitioner-wife as per said "talaq-nama" could not be said to be bona fide. That on the said facts and the reasoning the trial court has given a finding of fact that the respondent No. 1-husband having failed to prove the legal and valid talaq the petitioner-wife has continued to be the lawful wife of the respondent No. 1-husband and as such respondent No. 1 is liable to pay maintenance to the petitioner. ( 7 ) THAT the trial Court has rightly followed the observations made by this Court in the matter of A. A. Abdulla v. Mohmuna Saiyadbhai, reported vide AIR 1988 guj. 141 : 1988 (1) GLR 452 and has held on the facts of the case that even if it is assumed that the petitioner-wife is a divorced wife of respondent No. 1-husband, in view of the fact that the respondent No. 1-husband has failed to make any reasonable and fair provisions and maintenance to be made and paid to the petitioner- wife within the iddat period by the respondent No. 1 as former husband, the petitioner is entitled to claim the same under Sec. 3 (2) of the Muslim Women Act, 1986. That as there is no conflict between the said provisions and the provisions of Secs. 125 to 128 of the Code, the respondent No. 1 is liable to pay the maintenance to the petitioner-wife. Thus, the order of granting maintenance to the petitioner by the trial Court, as stated hereinabove, being not only legal but just. That as there is no conflict between the said provisions and the provisions of Secs. 125 to 128 of the Code, the respondent No. 1 is liable to pay the maintenance to the petitioner-wife. Thus, the order of granting maintenance to the petitioner by the trial Court, as stated hereinabove, being not only legal but just. proper any reasonable, the Addl. Sessions Judge ought not to have interfered with the same in the proceedings of Criminal Revision Application No. 46 of 1993. ( 8 ) THAT the legislative intent and object of the Muslim Women Act, 1986 has been construed by this Court in the context of provisions of the said Act, as well as provisions of Seces. 125 to 128 of the Code, in the matter of A. A. Ahdulla (supra) and has derived material and relevant conclusions as under (at page 474 475 of GLR) :" (A) Under the Muslim Women Act, a divorced woman is entitled to have a reasonable and fair provision from her former husband. Reasonable and fair provision would include provision for her future residence, clothes, food and other articles for her livelihood. She is also entitled to have reasonable and fair future maintenance. This is to be contemplated and visualised with the iddat period. After contemplating and visualising it, the reasonable and fair provision and maintenance is to be made and paid to her on or before the expiration of iddat period. This contemplation may depend upon the prospect of the remarriage of the divorced woman. If the former husband fails or neglects to make or pay a reasonable and fair. provision and maintenance, then the divorced woman is entitled to recover it by filing an application under Sec. 3 (2) of the Act. The determination of reasonable and fair provision and maintenance depends upon the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband. This conclusion is inescapable in view of the different phraseology used by the Parliament in Sec. 3 (1) and its clauses and Sec. 3 (3 ). Sec. 3 (1 ) (a) contemplates reasonable and fair provision and maintenance. Sec. 3 (3) lays down objective criteria for its determination. This conclusion is inescapable in view of the different phraseology used by the Parliament in Sec. 3 (1) and its clauses and Sec. 3 (3 ). Sec. 3 (1 ) (a) contemplates reasonable and fair provision and maintenance. Sec. 3 (3) lays down objective criteria for its determination. Under Sec. 3 (1 ) (b) reasonable and fair provision and maintenance is to be made and paid only for a period of two years from the respective dales of birth of children. While the Parliament has not prescribed any such period under Sec. 3 (1 ) (a ). Sec. 4 only provides for reasonable and fair maintenance. Apart from this, even Sec. 5 gives option to the parties to he governed by the provisions of Sees. 125 to 128 of the Criminal Procedure Code. (B) Under Sec. 4 of the Muslim Women Act a divorced woman is entitled to get maintenance from her relatives such as her children or parents or from Wakf board if she is not able to maintain herself after the iddat period from the provision and maintenance made and paid by her former husband. (C) As per the provisions of Sec. 5 the application filed under Sec. 3 (2) of the Muslim women Act by a divorced woman can be disposed of by following the provisions of Secs. 125 to 128 of the Criminal Procedure Code if the divorced woman and her former husband file affidavits to that effect. (D) Under Sec. 7 of the Muslim Women Act, all applications filed by a divorced woman under Sec. 125 or under Sec. 127 of the Criminal Procedure Code which are pending for disposal before the Magistrate on the date of the commencement of the Act are required to he disposed of by the Magistrate in accordance with the provisions of the said Act. (E) There is no provision in the Muslim Women Act which nullifies the orders passed by the Magistrate under Sec. 125 or 127 of the Criminal Procedure Code ordering the husband to pay maintenance to the divorced woman or takes away the vested rights which are crystallised by the order passed under Sec. 125 or 127 of the Criminal Procedure Code. " ( 9 ) THAT the observations made by the learned Addl. " ( 9 ) THAT the observations made by the learned Addl. Sessions Judge, Jamnagar vide para 11 of the judgment rendered in the Criminal Revision Application No. 46 of 1993 suggest that the Court has misconstrued the proposition of law settled by this Court in the matter of A. A. Abdulla (supra) and has misdirected himself to the facts and circumstances involved in the matter. That thereby he has committed jurisdictional error by setting aside the order passed by the learned C. J. M. dated 16-3-1993 in the proceedings of Misc. Criminal Appln. No. 1098 of 1990, and hence, in my opinion, petition deserves to be allowed and the order of the learned Addl. Sessions Judge, Jamnagar dated 16-6-1993 in the proceedings of Criminal Revision Appln. No. 46 of 1993 require to be quashed and set aside and the order of learned CJ. M. dated 16-3-1993 passed in Misc. Criminal Application No. 1098 of 1990 has to be restored. Rule is made absolute accordingly. .