1. Appellant-Nazir Ahmed S/O Shri Alaf Din Gujjar stands convicted under section 376 RPC, vide impugned judgment of learned 2nd Additional Sessions, Judge, Jammu, dated 28-12-1987 for allegedly committing rape with his own wife whom he had divorced by virtue of a registered Divorce Deed of 1978. He has been sentenced to undergo simple imprisonment for two years and a fine of Rs. 5,000/- which is ordered to be paid to the prosecutrix (wife). 2. As per the report submitted by the Superintendent, District Jail, Jammu, the appellant remained lodged in the jail from 29-01-2005 to 24-12-2005. This indicates that he has undergone about one year of substantive sentence. 3. Record reveals that the instant appeal was earlier dismissed on 31-05-2000 by this Court (Honble Mr. Justice Tejinder Singh Doabia). Subsequently, the appellant moved a petition bearing No.561-A Cr.P.C. 15/2005 for treating the earlier decision as nonest on the ground that the counsel for appellant was not present on the day when the appeal was dismissed. This Court (Honble Mr. Justice J. P. Singh), vide order dated 03-03-2006, while reviving the main appeal observed thus; "Both the learned counsel are not at variance that the judgment in Cr. 1st. Appeal No.02/1988 was delivered without hearing learned counsel for the appellant, who was not present on the day when the case was stated to have been decided. In my opinion, the judgment rendered in absence of the appellant would, thus, be nullity in law. It is, accordingly, treated as nonest. Criminal 1st Appeal No.0.2/1988 shall, therefore, revive. It is directed to be listed on 07.03.2006." 4. Mr. Salaria states that the instant appeal needs to be decided afresh on merits after hearing the learned counsel for both the sides. 5. In short it is a case of technical rape allegedly committed by the appellant with his own wife. 6. In brief, the allegations against the appellant are that he and the prosecutrix were married about 16/17 years back before the registration of the case. A daughter was also born out of this wedlock. The prosecutrix and her daughter were turned out by the appellant and they started staying in the house of father of the prosecutrix at Puran Akhnoor. In brief, the allegations against the appellant are that he and the prosecutrix were married about 16/17 years back before the registration of the case. A daughter was also born out of this wedlock. The prosecutrix and her daughter were turned out by the appellant and they started staying in the house of father of the prosecutrix at Puran Akhnoor. In January 1985 the prosecutrix filed a maintenance petition under section 488 Cr.P.C, before the concerned Court (Judicial Magistrate 1st Class, Akhnoor) in which the appellant appeared in April, 1985 and disclosed that he had already divorced the prosecutrix since 10-02-1978. The allegation was that on 30-09-1978 he had also executed a power of attorney in favour of his wife authorizing her to dispose of certain property describing and admitting that she was his legally wedded wife. Consequently, a Criminal case was registered against him on the allegations that in spite of executing and registration of Talaq-Nama against the prosecutrix he had been using her as his wife and cohabitating with her knowingly screening the factum of divorce deed and, as such, he has committed an offence punishable under section 376 RPC. After the completion of the investigation, the challan was filed against him and consequently he was charged under section 376 RPC. 7. The documentary evidence produced against the appellant is the complaint (EX.PWSB) filed by the prosecutrix before the learned Judicial Magistrate 1st Class, Akhnoor, who was sent to the concerned Police Station under section 156 (3) Cr.P.C. This forms the basis of the FIR. The other documentary evidence produced by the prosecution is divorce deed dated 10-02-1978 and the power of attorney dated 30-09-1978. Copy of the objections filed by the appellant during maintenance proceedings was also produced. 8. The oral evidence produced by the prosecution against the appellant was the statement of Mst. Shafqat Bibi, the prosecutrix, who stated that she had married to the appellant about 20 years back from the date of filing of the complaint and a daughter was also born out of this wedlock. About two years before the filing of the complaint, she was turned out of the matrimonial house and, as such, she was constrained to file a petition under section 488 Cr.P.C, wherein the appellant appeared and took the plea that he has already divorced her. About two years before the filing of the complaint, she was turned out of the matrimonial house and, as such, she was constrained to file a petition under section 488 Cr.P.C, wherein the appellant appeared and took the plea that he has already divorced her. She then stated that before turning her out of his house, the appellant used to cohabit with her almost daily in Village Mundh and she also permitted him to cohabit with her as she thought that she was his wife and never knew that she was divorced by any divorce deed prepared way back in 1978. She further stated that had the appellant communicated the factum of divorce to her, she would have never permitted him to cohabit with her and, therefore, he intentionally concealed this fact fraudulently and committed rape with her for 7/8 years continuously. She further stated that had this fact been known to her, she would have never stayed with the appellant and gone to her parents house the very day. 9. The prosecution has examined other 13 witnesses, but I do not feel the necessity of reproducing the same as their evidence is not that relevant for the purpose of deciding the instant appeal. 10. I have heard Mr. S.A. Salaria, Sr. Advocate who is assisted by Mr. Vineet Sharma, Advocate and Mr. B.S. Salathia, learned Additional Advocate General representing the State. With their assistant I have gone through the entire records. 11. Mr. Salaria vehemently contends that may be a divorce deed was got prepared by the appellant way back on 10-02-1978, but this was not communicated to the prosecutrix and, therefore, legally in Muslim Law it cannot be said to be as effectuating Talaq between the parties. Therefore, for all intents and purposes the appellant was cohabiting with the prosecutrix as his legally wedded wife. Thus, no offence under section 376 RPC, is made out against him. 12. Developing his arguments, Mr. Salaria then submits that may be he had taken a defence/plea in his favour on the basis of Talaq-Nama of Feb. 1978 in order to avoid maintenance, in a petition filed against him by his wife, that by itself would not be a ground to convict him legally for the offence of rape may be technically. 13. Mr. Salaria then submits that may be he had taken a defence/plea in his favour on the basis of Talaq-Nama of Feb. 1978 in order to avoid maintenance, in a petition filed against him by his wife, that by itself would not be a ground to convict him legally for the offence of rape may be technically. 13. Mr. Salaria then submits that the learned trial Court for the purpose of holding the appellant guilty has relied upon certain judgments which would not apply to the facts of the present case in the light of the judgment rendered by the Honble Supreme Court in Shamim Ara v. State of U. P (2002) 7 SCC 518, wherein their lordships while dealing with a petition under section 125 of Criminal Procedure Code, 1973 delved very deeply into this aspect and ultimately observed that the `Talaq to be effective has to be Pronounced and the term "pronounce" means to proclaim, to utter formally, to utter rhetorically, to declare, to articulate. In the aforesaid case, the view further taken was that mere plea by the husband in the written statement of divorce having been pronounced sometime in the past, by itself cannot be treated as effectuated Talaq on the date of delivery of copy of the written statement to the wife. Relying upon heavily on the aforesaid judgment, Mr. Salaria submits it can not be said legally that the appellant has committed any offence as alleged, may be technically as observed by the trial Court. 14. Mr. Salaria then submits that the trial Court has relied on Suni interpretation of Muslim law, whereas the present case is covered by Shia Muslim law and no written divorce is known in Shia Law. The impugned judgment of conviction deserves to be set-aside. 15. On the basis of aforesaid submissions, Mr. Salaria prays for acquittal of the appellant. 16. In the alternative, Mr. Salaria prays for reduction in the quantum of sentence on the ground of age and physical disability of the appellant, besides the fact that he has already undergone about one year of his substantive sentence. He has placed on record his disability certificate. 17. Mr. Salathia, opposed the arguments advanced by Mr. 16. In the alternative, Mr. Salaria prays for reduction in the quantum of sentence on the ground of age and physical disability of the appellant, besides the fact that he has already undergone about one year of his substantive sentence. He has placed on record his disability certificate. 17. Mr. Salathia, opposed the arguments advanced by Mr. Salaria primarily on the ground that the appellant had concealed a very material fact of execution of divorce deed (Talaq-Nama) from his own wife and had been cohabiting with her for 7/8 years and ultimately when she was turned out of her matrimonial home and was constraint to file a petition for maintenance, , he took the plea of divorce. He cannot be allowed to take the benefit of his own wrong. However, on legal aspect of the matter, Mr. Salathia has not been able to show any contrary law. 18. The most material point for consideration before me is, as to whether technically the offence of rape is proved in the present set of facts and circumstances, or not. Admittedly the appellant went on cohabiting with his own wife for long 7/8 years despite the fact that divorce deed (Talaq-Nama) was got prepared by him in Feb. 1978. Undisputedly the fact remains that it was not communicated or not pronounced to the wife. This is the evidence before me. 19. Sat Pal, PW-13 is the petition writer who had proved the divorce deed which was got prepared by the appellant on 10.2.1978. This witness had admitted that appellant had never handed over the divorce deed to his wife by hand or by registered post. The aforesaid deed was prepared in the presence of two witnesses namely Om Parkash S/O Desh Raj, Caste Brahamin and one Roshan Lal Sahnai, Stamp Vendor at Akhnoor. It was ultimately got registered from Sub-Registrar, Akhnoor. Another fact which is proved on record is that the appellant had executed a power of attorney on 30-09-1978 in favour of his wife where he described her as her legally wedded wife and empowered her to do all acts including execution of sale deeds etc. of his land in respect of third party. Another fact which is proved on record is that the appellant had executed a power of attorney on 30-09-1978 in favour of his wife where he described her as her legally wedded wife and empowered her to do all acts including execution of sale deeds etc. of his land in respect of third party. It can be safely inferred from the aforesaid documentary evidence on record, that appellant despite the fact that he had got a divorce deed prepared on 1,0-02-1978 had not given any effect to and instead got a power of attorney executed in favour of the prosecutrix for performing certain acts on his behalf. It was just a paper writing which was never given any legal effect as it was pronounced or communicated to the prosecutrix. 20. I am considering the present case on its own facts from legal that aspect only within ambit of Muslim law while following the ratio of Shamim Araa case (supra), wherein their lordships, while dealing with this aspect elaborately, have observed that condition precedent for effectiveness of divorce so as to disentitles a Muslim woman to claim maintenance is the pronouncement of the divorce and such pronouncement is to be proved on evidence and merely taking a plea in the written statement before the trial Court in respect of an application for maintenance that he (husband) had divorced the applicant (wife) claiming maintenance sometime in the past would not have the effect of effectuating a divorce simply on the date of delivery of the copy of the written statement to the wife disclosing the said fact. It was further observed in the aforesaid judgment that neither a similar statement made in an affidavit by the husband in some other case to which the wife was not a party, would also not have any evidentiary value in this regard so as to say that the divorce was pronounced. 21. I feel the necessity of narrating the facts of Shamim Aras case (supra) in brief. In the said case Shamim Ara was married in 1968. She on behalf of herself and on behalf of her two minor children filed a petition under section 125 Cr.P.C, before the family Court claiming maintenance on the ground that she was deserted by her husband. She also alleged cruelty in the said petition. In the said case Shamim Ara was married in 1968. She on behalf of herself and on behalf of her two minor children filed a petition under section 125 Cr.P.C, before the family Court claiming maintenance on the ground that she was deserted by her husband. She also alleged cruelty in the said petition. The non-applicant (husband) took the plea that the applicant (wife) on account of her certain mischievous activities had brought disgrace to his family and, therefore, he had divorced her on 11.7.1987 and, therefore, she was not entitled to any maintenance. Neither the particulars, nor the circumstances under which and the persons in whose presence the Talaq was v pronounced were stated. The husband examined himself in the witness box and adduced no evidence of Talaq to have been given by him on ll-07-1987. The husband relied upon some affidavit dated 31-08-1988 said to have been tendered by him in some civil suit to which wife was not the party. He sought corroboration from the said affidavit of having divorced his wife on 11-07-1987, but the same was communicated to her on 5-12-1990 by filing of the written statement by him in maintenance proceedings against him. It was held by the High Court that the date of communication stood completed on 5-12-1990 the date of filing the written statement and ultimately maintenance was granted from the month of August, 1988 to 5-12-1990. Aggrieved by the said judgment, Shamim Ara, knocked the doors of Honble Supreme Court and their lordships, while referring to different judgments on this issue and also taking in consideration Dr. Tahir Mahmoods `The Muslims Law of India discussing law of India (2nd Edition at page 113-19)) ultimately held in para-16 as under: - "16. 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.l030). 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 effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 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 Mahmod 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 the 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 partes, containing a self-serving statement of Respondent 2, could not have been read I evidence as relevant and of any value." 22. It was observed by their lordships that neither the marriage between the parties stood dissolved on 5-12-1990 nor does the liability of the husband to pay maintenance came to an end on that day and he would continue paying the maintenance to his wife until the obligation comes to an end in accordance with law. 23. Adverting to the facts of the case in hand, one fact is very clear on record that till the prosecutrix was turned out of her matrimonial home, the divorce deed (Talaq Nama) was not communicated to her. In fact it is her own case that the Talaq-Nama came to her notice only when the appellant took the plea of divorce deed prepared in Feb. In fact it is her own case that the Talaq-Nama came to her notice only when the appellant took the plea of divorce deed prepared in Feb. 1978 in order to avoid paying maintenance. It was not even formally uttered before her as she is very categoric in her substantive statement in Court that had she be in know of the fact of Talaq-Nama already got prepared by the appellant in 1978 she would have not permitted him to cohabit with him. Therefore, on facts, in my considered view, Shamim Aras case (supra), squarely covers the case of the appellant and technically it cannot be said that his cohabitation with prosecutrix for 7/8 years continuously as his wife till she was allegedly turned out, would bring his case technically within mischief of section 376 RPC. Therefore, he deserves acquittal for the said charge. Ordered accordingly. 24. The net result is that the instant appeal is allowed and the appellant is discharged of the bail bonds furnished by him during the pendency of the instant appeal, acquitted of the charge.