( 1 ) THIS revisional application is directed against the judgment and order dated 21. 6,2000 passed by the learned Judicial Magistrate, 1st Court, Uluberia in Misc. Case No. 89/98 under Section 125 of Cr. P. C. thereby allowing maintenance to the petitioner wife @ Rs. 600/-permonthfor2and 1/2 months only. ( 2 ) THE facts of the case is that, the petitioner filed an application under section 125 of Cr. P. C against, her husband, the opposite party (O. P.) alleging that their marriage was solemnised about four years back from the dale of filing of the application. The application was filed in the Court on 16. 6. 98. After marriage she went to her matrimonial home and started living with the opposite parly but, the opposite party and his mother started torture upon her demanding further dowry. The O. P. and his mother even tried to kill her hut she was saved by the elder brother of O. P. , and thereafter, her brother took away her from matrimonial home to her father's house. Since then she is living in her father's house. The O. P. did not enquire about her and did not pay her any money or maintenance. The O. P. has business of 'jari' and earns Rs. 3,000/- to Rs. 4,000/- per month. The petitioner has no income of her own and she is unable to maintain herself and she claimed maintenance @ Rs. 1,000/- per month from O. P. The O. P. , contested the Misc. Case by filing written show-cause where he denied all the material averments of petitioner's application. He inter alia contended that, since marriage the petitioner did not respect him as husband and his mother. Petitioner's brother-in-law namely Nadir Molla always disturbed peaceful conjugal life of petitioner and O. P. He asked the petitioner not to entertain her brother-in-law but she did not care at all. She left his house at the ill advise of her brother ill-law and is staying in her father's house voluntarily without any reason. When all his attempts to bring her back to his house failed, he divorced the petitioner on 4. 7. 98 by pronouncing 'falag' and also executed a talaqnama before Notary Public. After the 'talacf, the marital relationship between them stood dissolved in all respects and the petitioner is not entitled to claim any maintenance from him. When all his attempts to bring her back to his house failed, he divorced the petitioner on 4. 7. 98 by pronouncing 'falag' and also executed a talaqnama before Notary Public. After the 'talacf, the marital relationship between them stood dissolved in all respects and the petitioner is not entitled to claim any maintenance from him. He has no employment as alleged and rather he is an agricultural labourer and hardly earns Rs. 500/- per month. ( 3 ) AFTER evidence and hearing the parties, the learned Magistrate came to the decision that there was valid 'talaq' dated 4. 7. 98 and it was duly communicated to the petitioner in Court on 1. 9. 98. Accordingly, the petitioner is entitled to get maintenance from the date of filing of the application under section 125 of Cr. P. C. till her knowledge of divorce i. e. , from 16. 6. 98 to 1. 9. 98. Learned Magistrate granted maintenance to the wife petitioner from 16. 6. 98 to 1 9. 98 for 2 and 1/2 months only @, Rs. 600/- per month. Being aggrieved by and dissatisfied with the order of the learned Magistrate the wife petitioner has moved this Court in this revisional application. ( 4 ) LEARNED Advocate for the petitioner contended that in view of provisions of law even a divorced wife is entitled to get maintenance. During pendency of the proceeding under Section 125 of Cr. P. C. the husband with malafide intention divorced her in order to avoid payment of maintenance. The law nowhere says that a divorced wife cannot claim maintenance and even in muslim Law a divorced wife is entitled to claim maintenance. The 'talacf as alleged was not proved at all nor, the fact of 'talacf was communicated to the petitioner by the O. P. husband. The 'talaq' before the Notary Public is not valid in law. The learned Magistrate erred in law regarding factum of 'talacf and accordingly the order passed by the learned Magistrate is illegal and without jurisdiction. The said order requires to be set aside and the prayer of the petitioner should be granted and amount of maintenance should also be enhanced. In support of his contention he cited the decision in makiur Rahaman kha and Anr. v. Manila Bibi reported in (2002)1 Cal LJ 291. The said order requires to be set aside and the prayer of the petitioner should be granted and amount of maintenance should also be enhanced. In support of his contention he cited the decision in makiur Rahaman kha and Anr. v. Manila Bibi reported in (2002)1 Cal LJ 291. ( 5 ) LEARNED Advocate for the opposite party contended that marriage between the parties is admitted. The wife filed the application under Section 125 of Cr. P. C. on 16. 6. 98. Thereafter, the opposite party divorced her on 4. 7. 98 and executed a talaqnama on that dale before the Notary. It is true that there was no communication of the said 'talacf to the wife petitioner but, factum of 'talacf was disclosed in the written show-cause filed by the husband before the learned Magistrate in the proceeding under Section 125, Cr. P. C. The wife petitioner has the knowledge of 'talaq' from the date of filing of the show-cause by her husband in Court and show-cause was filed on 1. 9. 98 and accordingly, she is aware of the 'talacf on and from 1. 9. 98. The learned Magistrate very rightly granted her maintenance from 16. 6. 98 to 1. 9. 98 i. e. , from the date of filing of the application till her date of knowledge about 'talacf. After 'talacf a muslim woman, who is governed by their Muslim Personal Law, is not entitled to claim any maintenance under Section 125 of Cr. P. C. She can claim maintenance only for the iddat period in view of Sections 3, 4 and 5 of the muslim Women (Protection of Rights on Divorce) Act, 1986. In support of his contention he cited the decisions reported in 2000 C Cr LR (Cal) 195 (Kousher ah Laskarv. Moslema Bibi and Anr.), 1989 C Cr LR (Cal) 197 (Abdul Satter v. Sahanti Bibi and Anr.) and (1992)1 Cal HN 538 (Sk. Abubakkar v. Mst. Ohidunncssa Bibi ). ( 6 ) I have carefully perused the revisional application and anexures which contain the certified copy of the judgement and order passed by the learned Magistrate and considered the submissions made by the learned advocates for the parties. It is admitted that petitioner is the legally married wife of O P. , though O. P. , has introduced story of divorcing her. It is admitted that petitioner is the legally married wife of O P. , though O. P. , has introduced story of divorcing her. After considering the respective cases of the parties and perusing the judgment and order of the learned Magistrate, I find that the learned Magistrate has acted illegally and without jurisdiction. The learned Magistrate has placed reliance on the talaqnama which was executed before a Notary Public and according to the learned Magistrate it was a valid talaqnama. The learned Magistrate did not consider that the talaqnama was not registered and was not executed either before a Kazi or any person authorised under the law to register a talaqnama. The fact of lalaq' dated 4. 7. 98 was not communicated to the wife petitioner and if a 'talad' is not communicated to the wife it is no 'talaq" at all. Moreover, the learned Magistrate did not consider that the alleged 'talaq' was given after the filing of the Section 125, Cr. P. C. application by the wife and there was no 'fa/ag1 as alleged before presentation of the application for maintenance. 'talaq' cannot be given to a wife at the whims or caprice of a Muslim husband. In order to pronounce 'talacf there are certain regulations in accordance with muslim Law which are to bo followed and there must be valid reason for the 'falag', otherwise the said 'talaq' is illegal and void. ( 7 ) IN this connection, I rely upon decision of the Hon'ble Supreme court in Shamim Ara v. State of U. P. reported in 2002 AIR SCW 4162. The supreme Court clearly observed that, "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 20" Century Dictionary, new 1 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 5. 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 5. 12. 1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting 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 pronounced 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 for delivery of a copy thereof to the wife. So also the affidavit dated 31-08-1988 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. " ( 8 ) THE Supreme Court further observed that, There is yet another illuminating and weighty judicial opinion available in two decisions of Gauhati high Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) siting singly in Sri Jiauddin Ahmed v. Mrs. Anwara Begum, (1981) 1 glr 358 and later speaking for the Division Bench in Must. Rukia Khatun v. Abdul Khalique Laskar, (1981)1 GLR 375. In Jiauddin Ahmed's case, a plea of previous divorce i. e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. Rukia Khatun v. Abdul Khalique Laskar, (1981)1 GLR 375. In Jiauddin Ahmed's case, a plea of previous divorce i. e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim Law ? The learned judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. (Para 6 ). Quoting in the judgment several Holy Quaranic verses and from commentaries thereon by well-recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quaran does not brook. The correct law of talaq as ordained by the Holy Quaran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters - one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected (para 13 ). In Rukia Khatun's case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quaran is: (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected. The Division Bench expressly recorded its dissent from the Calcutta and the Bombay view which, in their opinion did not lay down the correct law. ( 9 ) WE are in respectful agreement with the abovesaid observations made by the learned judges of High Courts. If their attempts fail, 'talaq' may be effected. The Division Bench expressly recorded its dissent from the Calcutta and the Bombay view which, in their opinion did not lay down the correct law. ( 9 ) WE are in respectful agreement with the abovesaid observations made by the learned judges of High Courts. ( 10 ) THE above principle of law laid down by the Supreme Court dearly reveals that there must be valid reason for the 'talaq' and it cannot be whimsical and capricious. It is also well settled that before 'talaq' there must be attempt of reconciliation between the husband and the wife by two arbiters, one from wife's family and the other from husband and, if the attempt of reconciliation fails, then only 'talaq' may be effected. In the instant case there was no reconciliation and the 'talaq' was nothing but, whimsical and capricious and being so it was invalid. ' Taiaq' was also not communicated to the wife and plea of previous 'talaq' or divorce taken in the written show-cause cannot be treated at all as pronouncement of 'talaq' by the husband on the wife on the date of filing written statement/show-cause in the Court. The decisions cited by the learned Advocate for the O. P. are not at all applicable in the present proceeding under Section 125 of Cr. P. C. Accordingly, findings of the learned Magistrate that there was valid 'talaq' w. e. f. 1. 9. 98 and that the petitioner is not entitled to get any maintenance after 1. 9. 98 bang illegal and without jurisdiction is set aside. ( 11 ) THERE is no ground to send back the matter to learned Magistrate for fresh decision as the matter is very old and pending since 1998. This Court is competent to dispose of the matter on merit on the basis of evidence and circumstances. It appears that the learned Magistrate came to the decision that the husband has sufficient income or means to maintain the petitioner. The conduct of the husband i. e. O. P. clearly reveals his intention that he is not willing to pay maintenance to the petitioner and that is why after filing of the application under Section 125 of Cr. P. C. , he introduced story of 'talaq'. There is no evidence that the O. P. husband ever sent any money or maintenance to the petitioner. P. C. , he introduced story of 'talaq'. There is no evidence that the O. P. husband ever sent any money or maintenance to the petitioner. Accordingly, it was well established that the O. P. husband refused and neglected to maintain his wife. The aforesaid discussions makes it clear that in the present proceeding the application under Section 125 of Cr. P. C. is well maintainable. The fact of 'talaq' has not been proved at all and the wife petitioner is entitled to claim maintenance. The amount of maintenance fixed by the learned Magistrate was inadequate. In the instant case the findings of the learned Magistrate indicates that the husband has sufficient means to maintain the wife petitioner. The husband, if able bodied, is bound to maintain his wife and in the instant case there is no ground to disbelieve that the husband works with 'jari' or has business of 'jari' and naturally, his income is definitely above Rs. 4,000/- per month. The wife petitioner is accordingly entitled to claim maintenance @ Rs. 1000/- per month from the date of filing of the application. The amount of maintenance of each month shall be paid within 10th of the next following month according to English calendar. The amount of arrear maintenance starting from 16. 6. 98 to November, 2004 shall be paid in 40 equal monthly instalments along with payment of regular monthly maintenance amount and, the fraction of arrear maintenance, if any, shall be paid with the last instalment. The maintenance order will remain effective until the wife petitioner remarries or there is any change in the circumstances. The order passed by the learned Magistrate regarding quantum of maintenance and the period of its validity is accordingly modified to the extent as indicated above. ( 12 ) THE revisional application is accordingly allowed and disposed of in terms of the order as indicated above. Send a copy of this order to the learned Judicial Magistrate, 1st court, Uluberia for information and necessary action.