S. R. K. PRASAD, J. ( 1 ) THIS Criminal Revision is directed against the judgment in Crl. R. P. No. 62 of 2001 on the file of Court of Sessions Prakasam Division, ongole, setting aside the order of granting maintenance to the petitioner herein. ( 2 ) THE factual matrix that arise for consideration can be briefly stated as follows: the revision petitioner is the wife of the second respondent herein having married him as per the Muslim Religious Customs on 11-3-1991 at Annavarappadu. She joined the company of the second respondent herein and they lived happily for rome time. They gave birth to two children who were the respondents 2 and 3. The second respondent demanded cash for his business and his mother-in-law out of love and affection alienated her house in his favour and the respondent having not satisfied with the same began demanding for some more amount and he also had woman weakness and thereafter he began to tease the first petitioner and all of an sudden in the year 1998, he sent the revision petitioner herein to her mother s house on some false promise. Occasionally he used to visit Chinnaganjam and he was staying at Repalle saying that he had work there. Believing him, the revision petitioner along with children leading her life in her mother s house. The revision petitioner s mother is unable to maintain the petitioners with her marriage (meagre?) ncome as the petitioner is not receiving any amount from the respondent, she came to know that the respondent got married another woman and so he was visiting frequently Repalli she approached the respondent for her maintenance and demanded him to take her to his house and he refused to take her back on some false pretext. Hence, the revision petitioner issued a notice to the respondent to his address at ongole and Repalle on 9-6-2000 and the respondent gave reply through his counsel with false allegations and failed to provide maintenance to her. Hence, she sought for maintenance to herself and two children against her husband-second respondent. The husband filed a counter denying the averments and contended that his wife was residing at Chinnaganjam and she was intending to lead independent and individual life and she used to tell him that she would convert herself into Hindu and he opposed the same. Hence, she sought for maintenance to herself and two children against her husband-second respondent. The husband filed a counter denying the averments and contended that his wife was residing at Chinnaganjam and she was intending to lead independent and individual life and she used to tell him that she would convert herself into Hindu and he opposed the same. It was further contended that the revision petitioner deserted him in the month of August, 1999 and reached her mother s house along with children at Chinaganjam along with children. The second respondent has sent elders by name S. N. Munaf and Sk. Rasool Saheb to the revision petitioner to request her to come and lead marital life with him. As the elders mediation failed, again in the first week of January 2000, the respondent approached the revision petitioner and asked her either to live with him or to give divorce. As she refused, on 20-1-2000 the respondent pronounced talak at the house of the revision petitioner at chinaganjam in the presence of S. N. Munaf, shaik Rasool Saheb and Jamiya Mosque president, Ongole by name Haji Shaik Baji. The petitioner was paid mohar amount of rs. 525/-, and on the following day in the presence of elders, cash of Rs. 15,000/- and gold of seven sovereigns worth Rs. 28,000/- were given to the revision petitioner towards maintenance of the children and the same was reduced into writing at Chinaganjam on 29-1-2000. Having been a divorced wife, the petitioner is not entitled for any maintenance under the provisions of 125 Cr. P. C. After trial the Additional Munsif Magistrate, chirala gave finding that the husband has failed to prove the factum of divorce beyond reasonable doubt and awarded maintenance to the wife and children. He has awarded rs. 300/- to the wife and Rs. 250/- each to the children to be payable by the second respondent herein. Aggrieved by the same, the husband has carried the matter in revision before the District and Sessions Judge, ongole. The District and Sessions Judge, ongole set aside the granting of maintenance in so far as the wife is concerned and confirmed the granting of maintenance to the children in Cr. R. P. No. 62 of 2001 on the file of District Court, Ongole. The District and Sessions Judge, ongole set aside the granting of maintenance in so far as the wife is concerned and confirmed the granting of maintenance to the children in Cr. R. P. No. 62 of 2001 on the file of District Court, Ongole. Aggrieved by the judgment given in the said revision by the District and Sessions Judge, Ongole, the wife has invoked the revisional jurisdiction of the High Court. ( 3 ) THE entire issue centers round in respect of the validity of the divorce. Before adverting to the same, it is necessary to understand the muslim Personal Law and the injunctions given in the Quran as well as traditions from which the principles have to be drawn. It is a common notion that the marriage in respect of Muslims is only a contract. It is stated in the Book Muslim Law of Divorce, k. N. Ahmad, Kitab Bhavan, New Delhi, published in 1978 at page 2 as follows:"a Muslim marriage, unlike marriages in certain other religions, is not a sacrament. It has been stated by some writers and also held in some cases that it is a civil contract. But this view is equally incorrect and a Muslim marriage is not a mere civil contract. Great importance has been given to marriage by Islam and al Durr-al-Mukhtar and ashbah was Nazair and others books have called it an act of devotion. The former has stated it to be incumbent on a person whose passion is ungovernable. The Prophet (peace be on him) has said, "marriage is my Sunnah. " But in spite of the above it is not to be considered a sacred and indissoluble tie and al-Durr- al-Mukhtar goes so far as to state that when there is any fear of injustice, marriage becomes abominable. Similarly, it is stated in Tahtavi that marriage when injustice is certain is unlawful. A sacrament cannot be violated but Muslim law unquestionably allows divorce. On the other hand, there is no virtue attached to a civil contract but marriage in Islam is considered a virtuous act. Hence, to say that it is a sacrament or to describe it as a mere civil contract is not correct. As pointed out by Abdur Rahim in his well-known book, Muhammadan jurisprudence, marriage under A muslim law partakes of the nature of both a sacrament and a civil contract. Hence, to say that it is a sacrament or to describe it as a mere civil contract is not correct. As pointed out by Abdur Rahim in his well-known book, Muhammadan jurisprudence, marriage under A muslim law partakes of the nature of both a sacrament and a civil contract. Being commended by religion it tends to be treated as a holy injunction. It holds a position midway between the two. " ( 4 ) IT is next to be considered here what are the principles laid down by the religious injunctions given by Quran that govern the divorce. It is also necessary to understand how Quran has been compiled. It is stated in marriages and Divorce in Islam (Dr. Zeenat shaukat Ali) 1987 edition at page 20 and 21. The relevant portions read as follows:"compilation of the Quran: Though the quran was not bound in a single volume during the life time of the Prophet, yet the arrangement and compilation, muslims believe, were completed under divine instruction. It was during the prophet s lifetime that every revealed portion was recorded and written on the ribs of palmleaves, tablets of white stones by several Companions, and also memorized. Later, Zayd Ibu Tha bit, at the instance of Abu Bakr, was ordered to collect and copy all the original manuscripts. Zayd had been a personal assistant to the Prophet in Medina, in charge of noting down every revelation, applying a "two-fold method of verification, comparing the original manuscripts with the texts memorized by the Prophet s companions; this method provided a double testimony for the accuracy of every injunction . However,itwasduringcaliphuthman s reign that various readings in the current copies arose. This was mainly due to the defective nature of the Kufic Script; uthman, accordingly, appointed in 651 b. C. the same Zayd as chairman of the committee on revision. Abu Bakr s copy, then in the custody of Hafsah, daughter of umar and one of Muhammad s wives, was used as a basis. "the original codex of the fresh version was kept in al- madinah; there copies of this text were made and forwarded to the three military camps in Damascus, al-Basrah and al- kufah, and all others were destroyed". The present form of the Quran is one and the same in every part of the Muslim world, and it has maintained its uniformity over the centuries. The present form of the Quran is one and the same in every part of the Muslim world, and it has maintained its uniformity over the centuries. The Quran was revealed in the Arabic language and is divided into one hundred and fourteen chapters (Suras), arranged in thirty parts (Juz or Siparas ). Innumerable commentaries on the Quran now exist in various languages of the world, belonging to the different periods in history, beginning from the time of the first compilation of the Quran down to the present time. The Quran is the fundamental source of islamic jurisprudence, the Book of God, "the revelation of the Book in which there is no doubt, is from the Lord of the world (32. 2) "we have sent down to these the Book in truth, that thou mightest judge between men, as guided by God" (4:105 ). "nor does he say (not) of (his own) desire. It is no less than an inspiration sent down to him" (53:3,4)". ( 5 ) IT is clear that Quran was revealed in the Arab language. It was divided into 114 chapters (suras) arranged in 30 parts (Juz or siparas ). Innumerable commentaries on the quran now exist in various languages of the world, belonging to the different periods in history, beginning from the time of the first compilation of the Quran down to the present time. It is also clear that during the life time of the Prophet the revelations were recorded and written on the ribs of palm leaves, tablets of white stones by several companions and also memorized by the Prophet in Madina and compiled into a Quran. The relevant quran injunctions on the institution of divorce, have been mentioned in the said book Marriage and Divorce in Islam by dr. Zeenat Shaukat Ali at page 169. The said injunctions can be quoted which read as follows:"it would be appropriate at this stage to set out the pronouncement made by the quranic verses on the issue of divorce. This will be followed by popularly prevalent practices and procedures adopted by various schools of Islamic jurisprudence. Zeenat Shaukat Ali at page 169. The said injunctions can be quoted which read as follows:"it would be appropriate at this stage to set out the pronouncement made by the quranic verses on the issue of divorce. This will be followed by popularly prevalent practices and procedures adopted by various schools of Islamic jurisprudence. "if ye fear a breach between them twain, appoint (two) arbiters one from his family, and the other from hers; if they wish for peace, god will cause their reconciliation; for god hath full knowledge, and is acquainted with all things;" (4:35) "if wife fears cruelty or desertion on her husband s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men s souls are swayed by greed. But if ye do good and practice self-restraint, God is well-acquainted with all that ye do" (4. 128 ). "but if they disagree (and must part), God will provide abundance for all from His All reaching bounty for God is He that careth for all and is wise. " (4. 130) "o Prophet when ye do divorce them at their prescribed periods, and count (accurately) their prescribed periods; and fear God your Lord: and turn them not out of their houses, no shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by God; and any who transgresses the limits of god, does verily wrong his (own) soul thou knowest not if perchance God will bring about thereafter some new situation. " (65:1) "divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what God hath created in their wornbs, if they have faith in god and the Last Day. And their husbands have the better right to take them in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And God is exalted in Power, Wise, " (2. 228) "when ye divorce women, and they fulfill the term of their (iddat) do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you who believe in God and the Last Day. And God is exalted in Power, Wise, " (2. 228) "when ye divorce women, and they fulfill the term of their (iddat) do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you who believe in God and the Last Day. That is (the course making for) most virtue and purity amongst you, and God knows, and ye know not. " (2. 232) "a divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you, (men) to take back, any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by God. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by god. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by God, there is no blame on either of them if she give something for her freedom. These are the limits ordained by God; so do not transgress them, if any do transgress the limits ordained by God, such persons wrong (themselves) as well as others. " 2:229) "so if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another are the limits ordained by God, which He makes plain to those who understand", (2. 230) "but if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, take not the least bit of it back. " (4. 20) "o; ye who believe when ye marry believing women, and then divorce them before ye have touched them, no period of Iddat have ye to count in respect of them: so give them a present. And set them free in a handsome manner. " (33. 49) "thus when they fulfill their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witnesses two persons from among you, endued with justice, and establish the evidence (as) before God. Such is the admonition given to him who believes in god and the Last Day. And for those who fear God, He (ever) prepares a way out. Such is the admonition given to him who believes in god and the Last Day. And for those who fear God, He (ever) prepares a way out. " (65:2) "such of you as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same); for those who carry (life within their wombs) their period is until they deliver their burdens: and for those who fear God, he will make their path easy, " (65:4 ). "that is the command of God, which He has sent down to you: if any one fears God, He will remove his ills from him, and will enlarge his reward. " (65:5) "when ye divorce women, and they fulfill the term of their Iddat either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage; if any one does that, he wrongs his own soul. Do not threat God s signs as a jest, but solemnly rehearse god s favours on you, and the fact that he sent down to you the Book and wisdom, for your instruction. And fear god, and know that God is well acquainted with all things. " (2. 231) "let the women live in Iddat in the same style as ye live, according to your means; annoy them not, so as to restrict them. And if they carry (life in their wombs), then spend (your substance) on them until they deliver their burden: and if they suckle your (offspring), give them their recompense: and if ye find yourselves in difficulties, let another woman suckle (the child) on the (father s) behalf". (65:6)"let the man of means spend according to his means; and the man whose resources are restricted, let him spend according to what God has given him. God puts no burden on any person beyond what He has given him. After a difficulty, God will soon grant relief. (65:6)"let the man of means spend according to his means; and the man whose resources are restricted, let him spend according to what God has given him. God puts no burden on any person beyond what He has given him. After a difficulty, God will soon grant relief. " (65:7)"there is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (suitable gift), the wealthy according to his means, and the poor according to his means; a gift of a reasonable amount is due from those who wish to do the right thing". (2:236)"and if ye divorce them before consummation, but after the fixation of a dower for them, then half of the dower (is due to them) unless they remit it or (the man s half) is remitted by him in whose hands is the marriage tie; and the remission of the man s half) is the nearest to righteousness. And do not forget liberality between yourselves. For God sees well all that ye do" (2:237) "for divorced women maintenance (should be provided) on a reasonable (scale ). This is a duty on the righteous. " (2:241)". ( 6 ) FIRST figure indicates Chapter, second figure indicates verse of the Quran. In chapter 4 verse 35, it is clearly stated that two arbiters one from his family and the other from hers have to be mediated if they wish for peace. It is also further stated God will cause their reconciliation and God hath full knowledge and is well acquainted with all the things. It is also stated at chapter 65 under verse 1 when divorce was given the periods have to be counted. They shall not be sent out of the house unless they are guilty of some open lewdness. In Chapter 2 verse 228 it is clearly stated that the divorced women shall wait concerning themselves for three monthly periods. It is further stated that nor is it lawful for them to hide what God hath created in their wombs if they have faith in god and the Last Day. It is also observed in chapter 2 verse 229 that a divorce is only permissible twice after that the parties should either hold together on equitable terms, or separate with kindness. It is also observed in chapter 2 verse 229 that a divorce is only permissible twice after that the parties should either hold together on equitable terms, or separate with kindness. In Chapter 2 verse 241 it is clearly mentioned that the maintenance should be provided on a reasonable scale and this is a duty on the righteous. It is not stated in the Quranic injunction or in the verses mentioned in the quran that a divorce has to be pronounced in the presence of the wife. In Chapter 2 verse 236 refers about the giving of suitable gifs before consummation, but after the fixation of a dower for them. There are several schools of thought regarding divorce. In Sunni Law a Talaq may be pronounced orally as well as by means of a written Talaq-nama. Hence while they hold, it may be the deed by which talaq is effected, Shiahs declare an oral declaration necessary, holding a declaration of divorce in writing to be void, except under exceptional circumstances. It may be added here that where a repudiation takes place between persons, especially persons of rank and property and where valuables, rights and such are effected by the repudiation, the parties for their own security should have some document which might afford satisfactory evidence of what they have done. It is further observed "the Quran recommends written documents for any sort of contracts made, and divorce being the dissolution of one of the more important contracts entered into by an individual, a record as a matter of proof is recommended to avoid any sort of complications. The Shiahs hold that a Talaq cannot be effected by writing only nor in any other language besides arabic, when there is an ability to pronounce the necessary words for a valid repudiation. It is also observed that he must pronounce words in the presence of witness, and the fact of his doing so may be recorded in writing, which may be forwarded to the wife or it may be intimated to her otherwise. ( 7 ) THESE Quranic injunctions are some times considered along with traditions recorded either with the consent of Prophet mohammed or his followers. The entire law now has to be looked into by cutting out verses from Quran as well as traditions recognised by the followers of Mohammed prophet. ( 7 ) THESE Quranic injunctions are some times considered along with traditions recorded either with the consent of Prophet mohammed or his followers. The entire law now has to be looked into by cutting out verses from Quran as well as traditions recognised by the followers of Mohammed prophet. Each country has got its own way of dealing with the matters. For example pakistan has issued ordinance in modifying certain the Ordinance, a husband who has divorced his wife shall promptly inform in writing the Chairman of the Union Council of this fact and the Arbitration Council shall do its best to bring about a reconciliation. Nor can the husband enter into another marriage if he has got one or more wives living without first convincing the arbitration Council that circumstances justify his proposed marriage. Realization of maintenance allowance has also been made easy. In India the first enactment that was passed viz. , Dissolution of Muslim Marriage act, 1939 thereby brought about some modifications in Muslim Law of Divorce which are as follows:"the Bill was introduced in the Central legislative Assembly by the late muhammad. Ahmad Kazimi, a member of the Working Committee of the jamaiyyat al-Ulama-I Hind, because it was considered necessary to bring about certain important modifications in the then prevalent provisions of Muslim law. The following will show the extent to which modifications were made: (i) A Muslim girl could not formerly exercise her option of puberty on attaining majority if she had been given a way in marriage, while a minor, by her father or paternal grandfather. This rule was based on the reasoning that they were so closely related to the girl that it could be presumed that they must have acted in the best interests of the girl and must have given her away in marriage to the most suitable person. But in course of time, it was found that a father or a grandfather gave away his daughter or granddaughter in marriage to a very undesirable person or even to a man of depraved character either through carelessness or simply for the sake of some monetary or other gain and thus sacrificed the girl s future happiness. But in course of time, it was found that a father or a grandfather gave away his daughter or granddaughter in marriage to a very undesirable person or even to a man of depraved character either through carelessness or simply for the sake of some monetary or other gain and thus sacrificed the girl s future happiness. The law was, therefore, amended to meet this situation and a girl can now exercise her option of puberty even when she is given away in marriage by her father or grandfather during her minority. (ii) The Hanafi law did not allow the dissolution of a marriage on the basis of the husband s cruelty to the wife or for his failure to maintain her, which was found to result in great hardship to her. The Act now allows the dissolution of a marriage on these grounds. (iii) Under the Hanafi law, the wife of a missing husband had to wait for at lest sixty years before contracting a second marriage. Under the Maliki law the period of waiting is four years only. The Act has adopted the latter rule with some modifications in order to save the wife from obvious hardship. (iv) There was a great differenceof opinion amongst the Muslim jurists about the effect of the conversion of a Muslim wife to a revealed religion. The majority of Muslim jurists held the view that the marriage would get dissolved on the renunciation of Islam by the wife, but the ulama of Ma- wara al-hahr (Transoxiana) held a different opinion and stated that the marriage would not be dissolved under these circumstances. The Act has adopted the latter opinion. " ( 8 ) IT is next to be seen whether the divorce laws can be changed or not, and if so, to what extent a change can be brought about. ( 9 ) THE main injunctions given mentioned in the Quran cannot be changed. It is always believed by the most of the Muslim jurists while discussing the talaq say that talaq being in itself a pernicious and disapproved procedure, it is only the urgency of release that can give sanction to it. It is a very reasonable and sound view of the matter and it is not clear why it was not adopted by all the jurists who, however, agree that divorce was pernicious and should be discouraged. It is a very reasonable and sound view of the matter and it is not clear why it was not adopted by all the jurists who, however, agree that divorce was pernicious and should be discouraged. Hence, if a person divorces his wife without there being an urgent need for release, he shall be guilty of sin. It is observed by Abu hanifah that if there is no urgent need for release from the marriage tie, the divorce is haram (forbidden ). It is observed at page 8 as follows:"many Muslim jurists of the past did not hesitate to modify the law to make it suit the needs of their own times and we should also do the same. These jurists considered themselves bound only by express injunctions of the Quran and the traditions regarding obligations to do a thing or to abstain from doing a whenever necessary. Muslim law is very elastic. The Muslim jurists in later times, however, considered themselves absolutely bound by the law laid down by the early jurists without caring to see if it suited the needs and conditions of their times, and as they made the law very rigid. Muslim law, however, is full of instances where necessary modifications, to meet the requirements of their own times had been made by the jurists. To quote a few instances, drinking was punishable with forty stripes during the caliphate of Abu bakr, but umar increased the number to eighty in order to put a stop to the evil habit. Pronouncement of three divorces at one and the same time was considered tantamount to one divorce in the time of the Prophet (peace be on him) and Abu bakr, and during the first who or three years of the caliphate of Umar. People, however, used to wantonly repeat the pronouncement many times simultaneously thereby ignoring the seriousness of divorce. Umar considered it necessary to discourage this practice and held that repetition of three pronouncements at the same time would amount to three divorces. To give another example, conquered lands were distributed amongst the Muslim warriors by the Prophet (peace be on him), but umar stopped this practice in the public interest. Umar considered it necessary to discourage this practice and held that repetition of three pronouncements at the same time would amount to three divorces. To give another example, conquered lands were distributed amongst the Muslim warriors by the Prophet (peace be on him), but umar stopped this practice in the public interest. Again marriage with a Kitabiyah (Christian or Jewish woman) was permitted by the Prophet (peace be on him) and the first three Caliphs, though the second Caliph discouraged it, and when a Governor had married a Jewess, the Caliph ordered him to divorce her. But Ali the fourth Caliph, took up a very strong attitude and according to the majority of Shif ifulam a such a marriage is absolutely forbidden. According to some other Shi jurists, the marriage is not forbidden though it is considered highly undesirable. The Supreme Court of Pakistan has accepted the latter view. For a learned and interesting discussion of the subject, see Syed Ali Nawaz Shah gardezi v. Li. Col. the latter view. For a learned and interesting discussion of the subject, see Syed Ali Nawaz Shah gardezi v. Lt. Col. Muhammad Yusuf Khan, P. L. D. 1962 (W. P.), Lahore 558; Lt. Col. Muhammad Yusuf v. Syed Ali Nawaz gardezi, PLD1963 (W. P.) Lahore 141 and syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf, PLD 1963 SC 51". This practice of modifying rules of law continued even after the orthodox Caliphs as can be seen from the following instances: (A) Formerly, if a husband wanted to take his wife to another place and she refused to accompany him, then, according to Abu Hanifah, Abu Yusuf, and Muhammad, she was considered disobedient and lost her right to maintenance. But later, Abu Qasim saffar held that the rule was applicable in the times of those Imams, but in saffar s time the husband could not take her to another city (against her wishes ). The modification in the rule is probably due to the fact that traveling had become dangerous in later times. Also, because the Muslims had then spread out to very distant lands and means of communication were difficult and it was not considered desirable to force a wife to leave her relations and country in such circumstances. The modification in the rule is probably due to the fact that traveling had become dangerous in later times. Also, because the Muslims had then spread out to very distant lands and means of communication were difficult and it was not considered desirable to force a wife to leave her relations and country in such circumstances. (B) In the Alamgiriyah it is stated, "if a person divorces his wife while under the influence of hemp or bhang, then, according to tahdhib divorce would not be effected. But a divorce under such circumstances would now be given effect to and the husband would also be liable to punishment because of the prevalence of the vice (of the taking) of bhang or hemp amongst the people in our times and the Fatwa in our time is in accordance with this view. To give instances of our own times, we may quote some important changes introduced in the Muslim law of divorce by the Dissolution of Muslim Marriages act of 1939". ( 10 ) IT is clear from the above, that the jurists considered but express injunctions and traditions regarding the sanction obtained from doing certain thing cannot be modified, where the law was not obligatory and was merely permissive they allowed the modification whenever necessary. It is also observed there are full of instances where necessary modifications to meet the requirements of their own time had been made by jurists and thereby the instances of dissolution of Muslim Marriage Act, 1939 are indicated and law was not obligatory and only permissive. Hence, it can be taken that Muslim Law can be moulded towards the needs of the society except in cases where there are specific express injunctions of Quran and traditions regarding the obligation to do a thing. ( 11 ) THE law of divorce and the Talaq has been subjected to interpretation from the year 1909. The Madras High Court has considered the divorce aspect and the talaq and rendered its first judgment in Asha Bibiv. Kadir Ibrahim Rowther, wherein it is observed as follows: "according to the Hanafi Law, it is not necessary that the Talak or words of repudiation should be addressed directly to the wife to constitute a valid divorce. The expressions mentioned in the hedaya as constituting express divorce are not exhaustive, but merely illustrative of the different forms in which the Talak may be pronounced. The expressions mentioned in the hedaya as constituting express divorce are not exhaustive, but merely illustrative of the different forms in which the Talak may be pronounced. The relevant portion reads as follows: (pages 24,25 and 26 ). "as incident to a valid marriage the law imports certain rights and obligations inter se between the parties. The theory on which such marital rights and obligations are based is that the wife upon marriage surrenders her further marital freedom and the husband acquires a right to her connubial services (mutat) in consideration of certain obligations mostly of a pecuniary character incurred by him. Hence the husband is spoken of in the books as the owner, as it were, of her conj ugal services, to secure which he is entitled to exercise over the wife a certain amount of personal authority and control. The wife has also a right to the conjugal society of the husband during the continuance of the marriage, but it cannot be said to be of the same absolute character as the corresponding right of the husband. The husband does not by marriage lose his further marital liberty though the law for reasons of policy has restricted that liberty to his having four wives at one and the same time. Neither of the parties to a marriage acquires a right to or power over the property of the other, but on the death of one partner the survivor takes a specified share of the inheritance as an heir. The obligation of the husband consists mainly in his being made responsible for the maintenance of the wife and the children born of the marriage according to his status in life and he is further bound to make a certain settlemen to fmoney or property called mahr or dower on the wife. In case he has more than one wife, his dealings with them all must be on a strictly just and impartial basis. Mad. 647:1331c 375, Kathuyumma v. Urathel marakkar) where the wife has come to know of the talak given by her husband it should be deemed to have come into effect on that day and she would be entitled to maintenance up to that date and not for the later period. Mad. 647:1331c 375, Kathuyumma v. Urathel marakkar) where the wife has come to know of the talak given by her husband it should be deemed to have come into effect on that day and she would be entitled to maintenance up to that date and not for the later period. ( 12 ) THE effect of divorce and when it takes effect has been considered in a decision rendered by the High Court of Hyderabad in mohd. Shamsuddin v. Noorjahan Begum. The relevant portion at paragraph, 2 and 3 which reads as follows:"it is admitted that the husband Shamsuddin divorced his wife, Ahmed Bi, on 6-7-1952, and the petition for maintenance was filed after five days of this on the 12th. His learned advocate,shriabdul Khair Siddiki, therefore, argued that as the jurisdiction on the Court under Sec. 488 depends upon proof or admission of marriage between the parties and its continuance at the time of filing of the petition for maintenance, there was no jurisdiction in the court for passing any order of maintenance and hence the petition of the wife was rightly rejected. The question for consideration, therefore, is whether as soon as a Taluq is pronounced, the marriage tie is totally broken and no incidence of marriage continues thereafter. The reference is also on this point only. Reliance is placed in the order of reference on - abudl Khader v. Azeeza Bee . AIR 1944 mad. 227 (A), where iut has been held that divorce takes effect from the date on which the wife learns about it, and, therefore, liability to maintain her continues till then. The Hanafi Law is, however, clear on this point that for a valid pronouncement of divorce the presence of wife is not necessary and it can validly be given in her absence. The fatawa-e-Osmania, p. 134 and Tyabji on mohammadan Law, p. 224 (3rd Edn.) may be referred to in his connection. It would, therefore, appear that there is no authority in the texts of Muslim Law for the proposition that a divorce takes effect form the time when the divorced wife comes to know about it. The divorce in this case was given without any strings attached to it on 6th July. It would, therefore, appear that there is no authority in the texts of Muslim Law for the proposition that a divorce takes effect form the time when the divorced wife comes to know about it. The divorce in this case was given without any strings attached to it on 6th July. The parties are said to be of Hanafi persuasion and, therefore, it took effect on that date alone, (3) The further question, however, remains, whether with the divorce, the liability for maintenance of the divorced wife also comes to an end. This is the contention of the learned advocate of the husband. No doubt, the sine quanon of jurisdiction of a Magistrate under section 488 is the proof and admission of marriage. But the factum of marriage is to be determined according to the personal law. In this case, as the parties are Muslims, Muslim Law will apply. We have, therefore, to see whether in muslim, Law any incidence of marriage, especially in respect of maintenance of the divorced wife, continues after divorce or not. The answer to this appears to be in the affirmative. In Muslim Law, the wife does not become a free agent and is not competent to contract a second marriage till full 3 months if the marriage is dissolved by divorce inter vivos, and 4 months 10 days if the marriage is dissolved by death of the husband. This is called the period of Iddat. Because of this incapacity for a second marriage, the wife is given a right to maintenance for the period. Hence, on principle, when the factum of marriage is left for determination in accordance with the personal law, this incident of that law should also be taken into account. A Division Bench of this Court in 33 deccan LR 134 (B) held that owing to various incidence, the marriage tie itself should be deemed to have been extended for the period of Iddat. In another case of this court also, viz. , in - wahad Ali v. Qamra Bi", AIR 1951 Hyd. 117 (C) maintenance for the period of Iddat was decreed. We are, therefore, clear that the order refusing the wife maintenance for the period of Iddat, i. e. , for a period of three months from the date of divorce, 6-7-1952, was not correct and it is set aside. , in - wahad Ali v. Qamra Bi", AIR 1951 Hyd. 117 (C) maintenance for the period of Iddat was decreed. We are, therefore, clear that the order refusing the wife maintenance for the period of Iddat, i. e. , for a period of three months from the date of divorce, 6-7-1952, was not correct and it is set aside. The revision petition on this point is allowed and we direct that Ahmed Bi be given maintenance for three months at the rate of Rs. 20 per month. " ( 13 ) THE Apex Court has reviewed the entire law and considered about the Talak and laid down the principles that govern the same in the decision reported in Shamim Ara v. State of U. P. and another. The relevant portions at paragraphs 15,16 and 17 read as follows:"the plea taken by the husband- respondent No. 2 in his written statement may be re-noticed. The respondent No. 2 vaguely makes certain generalized accusations against the wife-appellant and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, the respondent No. 2 proceeds to state, vide para 12 (translated into English) "the answering respondent, feeling fade up with all such activities unbecoming of the wife - petitioner, has divorced her on 11-7-1987. " The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and the respondent no. 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq. We are also of the opinion that the talaq to be effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to utter, to articulate (See chambers 20th Century Dictionary, New edition, P. 1030 ). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on i3-12-1990. There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on i3-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced some time in the past cannot by itself be treated as effeciating talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2 could not have been read in evidence as relevant and of any value. For the foregoing reasons, the appeal is allowed. Neither the marriage between the parties stands dissolved on 5-12-1990 nor does the liability of the respondent no. 2 to pay maintenance comes to an end on that day. The respondent No. 2 shall continue to remain liable for payment of maintenance until the obligation comes to and end in accordance with law. The costs in this appeal shall be borne by the respondent no. 2". ( 14 ) IT is clear from the principles laid down by the Supreme Court that Talak must be given for a reasonable cause. The costs in this appeal shall be borne by the respondent no. 2". ( 14 ) IT is clear from the principles laid down by the Supreme Court that Talak must be given for a reasonable cause. It should be preceded by an attempt to reconciliation in between the husband and wife by two arbiters, one chosen by the wife from her family and the other by the husband from his family. If their attempts fail, talaq may be effected. What is meant by pronouncement has been interpreted by the Supreme Court at Paragraph 16. It has observed that the term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to utter, to articulate. Hence, the communication presented to the court in the form of written statement is not sufficient. In that case there was no proof of pronouncement of talaq placed before the court. Thereafter, the supreme Court observed in the aforesaid decision "neither the marriage between the parties stands dissolved on 5-12-1990 nor does the liability of the respondent No. 2 to pay maintenance comes to an end on that day. The respondent No. 2 shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law". While following the principles of the Supreme Court laid down in the aforesaid decision interpreting the talaq, this court has observed as follows: (paras 11,14 and 15 ). "v. Khalid, J. , as His Lordship then was, observed in Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512 ------" i feel it my duty to alert public opinion towards a painful aspect that this case reveals. A Division Bench of this court, the highest court for this State, has clearly indicated the extent of the unbridled power of a Muslim husband to divorce his wife. I am extracting below what their Lordships have said in Pathayi v. Moideen ( 1968 KLT 763 ). "the only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under hanafi law. . . . . . . He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under hanafi law. . . . . . . The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge. "should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be mended suitably to alleviate their sufferings? My judicial conscience is disturbed at this should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be mended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed. " (p. 514) we are in respectful agreement with the above said observations made by the learned Judges of High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends. What this Court observed in Bai Tahira v. AH Hussain air 1979 SC 362 dealing with right to maintenance of a Muslim divorce is noteworthy. To quote:"the meaning of meanings is derived from values is a given society and its legal system. Article 15 (3) has compelling, compassionate relevance in the context of Sec. 125 and the benefit of doubt, it any, in statutory interpretation belongs to the ill-used wife and the derelict divorce. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Art. 15 (3) and deliberate by design, made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in art. 39 is part of social and economic justice, specificated in Art. 38, fulfillment of which is fundamental to the governance of the country (Art. 37 ). From this coign of vantage we must view the printed text of the particular Code. Protection against moral and material abandonment manifest in art. 39 is part of social and economic justice, specificated in Art. 38, fulfillment of which is fundamental to the governance of the country (Art. 37 ). From this coign of vantage we must view the printed text of the particular Code. " (para 7)"law is dynamic and its meaning cannot be pedantic but purposeful". (Para 12) the plea taken by the husband respondent No. 2 in his written statement may be re-noticed. The respondent No. 2 vaguely makes certain generalized accusations against the wife-appellant and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, the respondent No. 2 proceeds to state, vide para 12 (translated into English) "the answering respondent, feeling fade up with all such activities unbecoming of the wife-petitioner, has divorced her on 11-7-1987. " The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and the respondent no. 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq. " ( 15 ) THE learned counsel for the second respondent mainly draws attention of this court that there is no need to communicate the pronouncement of talaq and it is not a sanction under any Quranic injunctions. It is also contended by him that what is required is only the pronouncement and it can be given effect to. ( 16 ) I have perused the translations and quranic Injunctions as well as the commentaries referred to above. What is required to constitute a valid talaq is pronouncement and there should be a knowledge on the part of the wife. Unless there is knowledge on the part of the wife, the right to maintenance will not cease which can be culled out from paragraph 17 of the supreme Court as well as Quranic Verses. I have already stated but it is not specifically mentioned in the Quran that the Talaq has to be pronounced in the presence of the wife. Unless there is knowledge on the part of the wife, the right to maintenance will not cease which can be culled out from paragraph 17 of the supreme Court as well as Quranic Verses. I have already stated but it is not specifically mentioned in the Quran that the Talaq has to be pronounced in the presence of the wife. It is also not specifically stated that it has to be communicated. The law changes from country to country and amendment has been brought about by the Pakistan bringing about the change in the laws. Hence, it can be seen that there is no bar to bring about a change by incorporating that the Talaq shall be communicated to the wife. In any view of the matter, it is for the Government to consider to bring about the necessary legislations so thatinjustice may not be caused to the women and the Quran contemplate equal treatment giving great respect to the woman. But the fact remains is that the right to claim maintenance continues to exist till it is communicated or knowledge is attributable to the wife. My attention has been rightly drawn by the respondent counsel that communication is not necessary, but my view taken earlier in 2003 (3) ALD 220 (2. Begum v. K. Md. Haneef) stand corrected by the Supreme court decision though two such decisions have been rendered as long back as in 1940 (Madras and Bombay) stating that communication is necessary. I have already stated that it is for the Legislature to bring about necessary legislation so that a communication is a prerequisite for severing the relationship under a contract during modern times and the clue has to be taken from the Islamic countries itself, which does not prohibit for bringing a modification. ( 17 ) COMING to the facts of this case, it has to be considered whether Talaq pronounced in this case is valid talaq and in accordance with the principles laid down by the Supreme court? The Quranic verses and injunctions quoted by me supra clearly indicate that two arbiters have to be selected from husband as well as from the wife side. The Supreme court has done reiterating the same. In this case the arbiters selected are only one side. The arbiters from the wife side have not been picked up. The Quranic verses and injunctions quoted by me supra clearly indicate that two arbiters have to be selected from husband as well as from the wife side. The Supreme court has done reiterating the same. In this case the arbiters selected are only one side. The arbiters from the wife side have not been picked up. That means it goes contra to the quranic injunctions given which cannot be approved by the court and it goes contra to the principles laid down by the Supreme court in the decision reported in Shamim Am v. State of U. P. and another (supra 4 ). It is clearly stated by the Supreme Court that the talaq must be for a reasonable cause and it must be preceded by an attempt of reconciliation in between the husband and wife by two arbiters one chosen by the wife from her family and other by the husband. Taking the arbiters from Husbands side only goes contra to the Quranic injunctions. Hence, the divorce cannot be upheld in this case. When divorce cannot be upheld the question of having a resort to Muslim Women (Protection of Rights on Divorce) Act, 1986 does not arise as the relationship comes to an end. In that view of the matter, I am of the considered view that divorce alleged to have been pronounced and reduced into writing is not in accordance with the Quranic injunctions given and not in accordance with the Principles laid down by the Supreme court. Hence, the order passed by the appellate Court setting aside the right to maintenance has to be set aside. The maintenance granted by the Magistrate has to be restored. During the pendency of the case, it is alleged that the son is now in the custody of the father and there is no need to award maintenance. In order to verify the said fact this court wanted the parties to be present, In fact son, being the seconc respondent has been produced before this court. As the second respondent is said to be in the custody of the father the maintenance order is liable to be modified. Under the changed circumstances, this court is setting aside the maintenance awarded to R3. As the second respondent is said to be in the custody of the father the maintenance order is liable to be modified. Under the changed circumstances, this court is setting aside the maintenance awarded to R3. (2) To sum up, the petitioner is entitled to maintenance as the divorce rendered is not in accordance with the Quranic Injunctions and not in accordance with the judgment of the Supreme Court. As there is no valid divorce the right to maintenance continues to exist for the petitioner as per law. The maintenance granted to the son is liable to be set aside as he is said to be in the custody of the father from the date of his production before the court. Hence, awarding of maintenance to the petitioner and the third respondent herein by the First Class magistrate s Court is restored and the order of the appellate court is set aside since it causes miscarriage of justice. Hence, Criminal revision Case is accordingly allowed. ( 18 ) I record appreciation for the guidance given by the learned counsel Sri Syed Shareef ahmed as well as Public Prosecutor represented by Md. Abdul Khadeer.