ORDER 10.9.2004 — Though this matter has been listed for admission, on the consent of the learned counsel for the parties, the same is taken up for final disposal. Heard Mr. M.K.Das, the learned counsel for the petitioner. The petitioner-husband filed a petition in Crl. Misc. Case No. 196 of 2002 in the Court of learned S.D.J.M., Baripada challenging the maintainability of the Misc. Case on the plea that he has already divorced the opposite party-wife by pronouncing 'Talaq'. According to the petitioner, once Talaq is pronounced, the marriage comes to an end and no maintenance can be granted under Section 125, Cr.P.C. Reliance is also placed on the case of Subnam Ara Bibi @ Subnum Bibi v. Malik Babar Ali : 1999 (I) OLR 376. In the said case the parties belonged to Muslim community and wife was claiming maintenance under Section 125, Cr.P.C. from the husband. The husband had taken a plea of divorce and had challenged the maintainability of the proceeding. During pendency of the proceeding a child was born to that couple. The wife prayed for maintenance. It was held that divorced Muslim woman cannot take resort to a proceeding under Section 125, Cr.P.C. and cannot maintain the same unless she has taken the remedial steps and passed out the legal hurdles as provided under Sections 3 and 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and enquiry should be made as to whether there was divorce or not. It was also held that in view of the rival stand of the parties, there is no admissible evidence available on record as to whether the wife was divorced when she made the application. In that case, the facts and issues were different. The above observations were made while considering the prayer for amendment of the petition. In the present case, it is clear from the impugned order that the opposite party-wife has no where admitted dissolution of marriage, rather she has claimed that the marriage is still subsisting and that she has been driven out from the house after being tortured by the husband. In such a situation, divorce cannot be presumed and the petition filed by wife cannot be thrown at the threshold. The question whether marriage is still subsisting or divorce has been given will be decided during the course of trial. In such a situation, divorce cannot be presumed and the petition filed by wife cannot be thrown at the threshold. The question whether marriage is still subsisting or divorce has been given will be decided during the course of trial. Considering the aforesaid facts, the learned S.D.J.M., Baripada passed the impugned order observing that the proceeding under Section 125, Cr.P.C. is maintainable. In the aforesaid situation, I find no illegality or infirmity in the impugned order requiring interference by this Court in this revision. Accordingly, the revision fails and the same is dismissed. Revision dismissed.