JUDGMENT - D.G. DESHPANDE, J.:---Heard Mr. Patil for the petitioner, nobody is present for respondent No. 1. A.P.P. for the State present. 2. A very interesting question has been raised in this petition by the petitioner. The question becomes interesting because of the two conflicting judgments of the Division Bench on the same point, namely, judgment delivered by Justice A.V. Sawant T.K. Chandrashekhara Das reported in 2000(1) Bom.C.R. 696 : 1999(3) Mh.L.J. 694 : 1999 All.M.R.(Cri.) 1156, (Jaitunbi Mubarak Shaik v. Mubarak Fakruddin Shaikh another)1, and judgment delivered by Justice G.D. Patil A.B. Palkar reported in 1999(3) Mh.L.J. 718 : 2000 All.M.R.(Cri.) 86 (Saira Bano w/o. Mohd. Aslam v. Mohd. Aslam Ghulam Mustafa Khan Sherwani another)2. In case of Jaitunbi the Division Bench held, if in proceedings under section 125 of the Criminal Procedure Code the Muslim husband takes a plea in the written statement that his marriage has been dissolved at an earlier date in the talak form, even assuming that fact of such dissolution at an earlier date is not proved, the filing of written statement containing such a plea of divorce amounts to dissolution of marriage under the Muslim Personal Law. On the other hand in Saira Bano's case the Division Bench held, that pleadings of divorce by itself cannot be taken either to be proof of divorce or even otherwise to be independently as a declaration of existence of cessation of legal relationship between the parties. 3. The facts giving rise to the present petition are that the respondent No. 1 who is wife, filed an application for maintenance under section 125 of Cri.P.C. before the J.M.F.C., Kolhapur. In that application this present petitioner raised an objection by filing Misc. Application No. 35/83 under section of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the "Act of 1986") to the effect that the wife-respondent No. 1 had given him talak after three pronouncements. This fact was supported by registered notice given by her and the public notice published in daily "Pudari" on 3-7-1980. Therefore, according to the husband the wife had given talak, and her application for maintenance under section 125 of Cri.P.C. was not tenable. The Magistrate rejected this claim and contention of the husband. The revision preferred by the husband before the 3rd Additional Sessions Judge, Kolhapur was also rejected, and therefore this petition. 4. Therefore, according to the husband the wife had given talak, and her application for maintenance under section 125 of Cri.P.C. was not tenable. The Magistrate rejected this claim and contention of the husband. The revision preferred by the husband before the 3rd Additional Sessions Judge, Kolhapur was also rejected, and therefore this petition. 4. Two questions arise in this petition, namely whether any of the aforesaid conflicting judgments of the Division Bench apply to the instant case and whether this petition can be disposed of on the basis of those judgments and secondly whether the husband can successfully claim that the talak given by the wife is legal and proper and is binding upon her. 5. In my opinion, none of the two conflicting judgments apply to the present case. In the case of Jaitunbi the Single Bench referred the matter to the Division Bench with the following question. "In proceedings for maintenance instituted by a Muslim wife, if a Muslim husband makes a plea in his written statement that his marriage had been dissolved at an earlier date in the talak form, even assuming that the fact of such dissolution at an earlier date is not proved, whether the filing of the written statement containing such a plea of divorce in the talak form amounts to the dissolution of marriage under the Muslim Personal Law from the date on which such a statement was made ? 6. Admittedly, so far as the present case is concerned, the husband - petitioner has not in his reply to the application under section 125 of Cri.P.C. filed by the wife before the Magistrate raised any plea that he has given divorce to the wife by talak. Nor the husband petitioner has in his objection under section 7 of the Act of 1986 raised any such plea that the husband of his own accord has given divorce in the form of talak to the wife. Therefore, the judgment of Division Bench in Jaitunbi's case will have no application. Secondly, in Saira Bano's case the husband had resisted the plea of the wife for maintenance on the ground that in his evidence in the witness box he has stated that he divorced his wife and had sent talaknama to her, by registered post, but the wife refused to accept the same. Secondly, in Saira Bano's case the husband had resisted the plea of the wife for maintenance on the ground that in his evidence in the witness box he has stated that he divorced his wife and had sent talaknama to her, by registered post, but the wife refused to accept the same. The Magistrate found that factum of respondent having given divorce was not proved and it was to be noted that in the written statement plea of divorce was not raised by the husband. 7. It will be clear from the facts of Saira Bano's case that there also the husband had not raised plea of his giving talak to the wife. He had raised that plea that he had given talak to the wife and had sent talaknama to her by registered post. Saira Bano's case will also have no application to the facts of the present case where the husband has not pleaded that he has given talak by sending talaknama. Both these cases therefore cannot be pressed into service either for the husband or for the wife in the facts of the present petition. 8. The question in this case, that is raised by the petitioner is that the talak given by the wife and as communicated to him by registered post notice, as well as by the public notice in the daily "Pudari", referred to above, was given by her in pursuance to the authority given by the husband to the wife as provided under section 314 of the Mohammedan Law by (Eighteenth Edition of 1977). This section is as under : "314. (1) Delegation of power to divorce.---Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked." 9. Counsel for the petitioner wants this Court to accept his contention that the divorce was given by the wife. However, there are two obstacles in the way of the petitioner and of this Court in considering his contention. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked." 9. Counsel for the petitioner wants this Court to accept his contention that the divorce was given by the wife. However, there are two obstacles in the way of the petitioner and of this Court in considering his contention. First is that neither in the written statement filed to the section 125 application nor in the objection raised under section 7 of Act of 1986 the husband - petitioner anywhere stated that he had authorised his wife or has delegated his power to his wife to give talak. If she so desire. What is stated in the objection under section 7 of the Act of 1986 is that the wife gave talak on 1-2-1980 by pronouncing the same thrice, that she gave a registered notice and also published a public notice on 3-7-1980 and therefore talak given by the wife has become complete and absolute, and it is irrevocable. A copy of the written statement filed to the 125 application is not before me. However, Counsel for the petitioner could not point out that in the said written statement he has to the petitioner under section 314 of the Muslim Law i.e. out of power delegated to her by the husband. 10. Section 314 as stated above forms part of Chapter XVI of the Muslim Law under the title Divorce by husband. This chapter commences from section 307 which lays down "The contract of marriage under the Mohammedan Law may be dissolved in anyone of the following ways : 1) by the husband at his will, without the intervention of a Court: (2) by mutual consent of the husband and wife without the intervention of a Court: (3) by a judicial decree at the suit of the husband of wife". It has been further laid down that the wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after the marriage (section 314), but she may, in some cases, obtain a divorce by judicial decree. 11. Section further lays down that when the divorce proceeds from the husband, it is called as talak, when it is effected by mutual consent, it is called khula or mubara, according to the terms of the contract between the parties. 11. Section further lays down that when the divorce proceeds from the husband, it is called as talak, when it is effected by mutual consent, it is called khula or mubara, according to the terms of the contract between the parties. It will be clear from the aforesaid section 307 that the word talak is used only with reference to the husband and divorce by a wife cannot give divorce to the husband without the consent. 12. In view of these facts, when the wife has no right under the Muslim Law to give divorce to the husband, if the husband wants the Court to believe that he has delegated his power or giving divorce to the wife and the wife has in exercise of those powers given talak to him or divorce to him, then a heavy burden of proof will lie on the husband to prove firstly the fact of delegation of his rights to the wife and the divorce being given by the wife in exercise of those delegated powers. Admittedly, the pleadings of the husband petitioner in his reply or written statement to application under section 125 of Cri.P.C. or in his objection under section 7 of the Act of 1986, do not support his contention now raised before this Court. He has nowhere stated that he delegated his powers to the wife, he has not given the particulars, when the powers were so delegated before whom they were delegated, what were so delegated, what were the circumstances which compelled him to delegate those powers and secondly he has nowhere stated that the wife gave divorce or talak to him in exercise of the delegated powers. 13. Counsel for the petitioner tried to raise this contention or objection on the basis of the evidence of the husband given before the Magistrate and one witness examined by him in support (notes of evidence were made available by the Advocate from his record) in his evidence husband has stated "I lastly tried to bring her back by going to her house. Applicant refused to come. Her relatives also refused to send her and expressed that they are going to give talakh. The applicant also asked to give Talakh. My friend Shivalirao Dalvi Patil was with me at that time. Applicant refused to come. Her relatives also refused to send her and expressed that they are going to give talakh. The applicant also asked to give Talakh. My friend Shivalirao Dalvi Patil was with me at that time. I refused to give any Talakh and asked the applicant that she should give talakh to which I will give consent. I authorised the applicant to give talakh." 14. Shivaji Daji Patil witness of the husband in his evidence has stated "on 26-1-1980 I had gone to the applicant along with the opponent (applicant means wife opponent means husband) for bringing back the applicant. The applicant, her parents and her grant-father were present in the house. The opponent asked the applicant, to accompany him but her relatives refused to send her. The applicant asked the opponent to give talakh and refused to come. The opponent refused to give talakh and asked the applicant to give talakh if she desires. He also authorised the applicant to give talakh." 15. This evidence of the petitioner applicant and his witness, cannot, in my opinion, be accepted at all by the Court and has been rightly rejected because there are no such pleadings anywhere taken by the applicant. The written statement to 125 application and the objection under section 7 of the Act of 1986 is totally silent in this regard. Merely because the wife has given notice asserting talak or has given a public notice making same assertions, it cannot be construed that the talak was given by her at the instance of or under the authorisation or delegation of powers by the husband. 16. For all these reasons, no interference is called for in the Orders of the trial Court as well as of the Additional Sessions Judge, Kolhapur. Hence petition dismissed. Rule discharged. Stay vacated. Parties are directed to decide the application under section 125 of Cri.P.C. within six months thereafter. Office to send writ immediately. Petition dismissed. -----