JUDGMENT : 1. The petitioner-husband is aggrieved by the order passed by the Prl. Sessions Judge, Udupi, in Crl.R.P.No.55/2014, while upholding the orders passed in M.C.No.52/2006 by the Prl. Civil Judge and JMFC, Karkala, directing the petitioner herein to pay maintenance of Rs.3,000.00 per month to the respondent-wife. 2. Some of the admitted facts are that the marriage between the petitioner and the respondent herein was solemnized on 18/8/2004 as per the rights and customs of Mohammadan Law. The respondent herein filed a petition under Sec. 125 of Cr.P.C. seeking maintenance of Rs.5,000.00 p.m. from the petitioner. Objections were filed by the petitioner, more specifically contending that during the course of the proceedings, the petitioner has divorced the respondent and therefore he is not required to pay maintenance. 3. Learned Counsel for the petitioner submits that the respondent was examined as PW-1. In her evidence, the respondent has admitted that she received a letter of Talaq dtd. 13/1/2009 from the petitioner herein and prior to that there was an attempt of settlement of dispute before the Karkala Jamath. This admission on the part of the respondent is said to be found in her petition filed under Sec. 12 of the Protection of Women from Domestic Violence Act, 2005 and the respondent has stated in the application that there was an attempt for settlement of dispute before the Jamath. It is contended that the respondent has admitted that after the failure of conciliation at the hands of the Jamath, the petitioner herein issued the letter of Talaq declaring thrice that he has divorced the respondent. 4. While referring to the case of Shamim Ara Vs. State of U.P. And Another (2002) 7 SCC 518 , it is submitted that the Hon'ble Supreme Court has examined what constitutes a valid Talaq. "310. Talak may be oral or in writing.-A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama (d). (1) Oral talak.-No particular form of words is prescribed for effecting a talak. If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her (f). If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her (f). In a Calcutta case the husband merely pronounced the word 'talak' before a family council and this was held to be invalid as the wife was not named (g). This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife's absence, as the wife was named (h). The Madras High Court has also held that the words should refer to the wife (i). The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is not necessary that it should come to her knowledge (j); and her alimony may continue till she is informed of the divorce (k). As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Article 104 for the wife's suit for deferred dower ran from the time when the divorce comes to her notice (l), under the Act of 1908. See also the Limitation Act, 1963. Words of divorce.-The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g., 'Thou are divorced', 'I have divorced thee', or 'I divorce my wife forever and render her haram from me' (Rashid Ahmad v. Anisa Khatun (h), they clearly indicate an intention to dissolve the marriage and no proof of intention is necessary. But if they are ambiguous (kinayat), e.g., 'Thou art my cousin, the daughter of my uncle, if thou goest' (Hamid Ali v. Imtiazan [ILR (1878) 2 All 71] ) or 'I give up all relations and would have no connection of any sort with you' (Wajid Ali Khan v. Jafar Husain Khan [ILR (1932) 7 Luck 430 : 136 IC 209 : AIR 1932 Oudh 34], the intention must be proved. Pronouncement of the word talak in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in the dissolution of the marriage. The intention of the husband is inconsequential. Pronouncement of the word talak in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in the dissolution of the marriage. The intention of the husband is inconsequential. Ghansi Bibi v. Ghulam Dastagir [(1968) 1 Mys LJ 566]. If a man says to his wife that she has been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier." (d) See Ma Mi v. Kallander Ammal, AIR 1927 PC 15 : 100 IC 1 : (1927) 54 IA 61 : ILR 5 Rang 18 affirming Kalenther Ammal v. Ma Mi, ILR (1924) 2 Rang 400 (e) Ma Mi v. Kallander Ammal, supra; Ahmad Kasim Molla v. Khatun Bibi, ILR (1932) 59 Cal 833 : 141 IC 689 : AIR 1933 Cal 27; Ful Chand v. Nazab Ali Chowdhary, ILR (1909) 36 Cal 184 : 1 IC 740; Sarabai v. Rabiabai, ILR (1905) 30 Bom 537 : 8 Bom LR 35 (f) Ma Mi v. Kallander Ammal, supra; Ahmad Kasim Molla v. Khatun Bibi, ILR (1932) 59 Cal 833 : 141 IC 689 : AIR 1933 Cal 27; Ful Chand v. Nazab Ali Chowdhary, ILR (1909) 36 Cal 184 : 1 IC 740; Sarabai v. Rabiabai, ILR (1905) 30 Bom 537 : 8 Bom LR 35 (g) Furzund Hossein v. Janu Bibee, ILR (1878) 4 Cal 588 (h) Rashid Ahmad v. Anisa Khatun, (1931-32) 59 IA 21 : ILR (1932) 54 All 46 : 135 IC 762 : AIR 1932 PC 25 (i) Asha Bibi v. Kadir, supra. (j) Ful Chand v. Nazab Ali, supra. (k) Ma Mi v. Kallander Ammal, supra; M.M. Abdul Khader v. Azeeza Bee, (1944) 1 MLJ 17 : 214 IC 38 : AIR 1944 Mad 227 (l) Kathiyumma v. Urathel Marakkar, (1931) 133 IC 375 : AIR 1931 Mad 647 5. It was further held that in Dr.Tahir Mahmood's The Muslim Law of India (2nd Edn., at pp. 113-19) the basic rule stated is that a Muslim husband under all schools of Muslim law can divorce his wife by his unilateral action and without the intervention of the court. This power is known as the power to pronounce a talaq. It was further held that in Dr.Tahir Mahmood's The Muslim Law of India (2nd Edn., at pp. 113-19) the basic rule stated is that a Muslim husband under all schools of Muslim law can divorce his wife by his unilateral action and without the intervention of the court. This power is known as the power to pronounce a talaq. A few decided cases are noticed by the learned author wherein it has been held that a statement made by the husband during the course of any judicial proceedings such as in the wife's suit for maintenance or restitution of conjugal rights, or the husband's plea of divorce raised in the pleadings did effect a talaq. 6. Since it was contended at the hands of the respondent that the letter of talaq did not constitute a valid talaq, the learned Counsel for the petitioner points out to the findings of the Hon'ble Supreme Court in paragraphs-11 and 12 of the said judgment. A decision of a Division Bench of the Kerala High Court in the case of Mohd. Haneefa Vs. Pathummal Beevi (1972) KLT 512 was noticed, wherein the decision in the case of Pathayi Vs. Moideen was extracted as follows : "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-..... The husband can effect it 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." 7. The learned Counsel further submits that there is a reference to the decision of the eminent Judge and jurist V.R. Krishna Iyer J., in the reported judgment of A. Yousuf Rawther Vs. Sowramma ( AIR 1971 Ker 261 ) where commentaries from various sources were noticed, including that of Dr. Galwash who had stated that "divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'talaq' or by 'khola'. Sowramma ( AIR 1971 Ker 261 ) where commentaries from various sources were noticed, including that of Dr. Galwash who had stated that "divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'talaq' or by 'khola'. Ultimately, it was held in Shamim Ara's case that a mere plea taken in the written statement by the husband that he had pronounced Talaq some time 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. It was held that the talaq to be effective has to be pronounced, meaning proclaimed, uttered formally, declared, articulated." 8. The learned Counsel would therefore submit that in the present case, what has been admitted by the respondent-wife is that she received the letter of talaq and therefore there is a clear pronouncement of Talaq, admitted by the respondent. On the other hand, the Trial Court has held that although the petitioner claims to have divorced the respondent by pronouncing triple talaq by way of a letter, nevertheless, since the petition under Sec. 125 of Cr.P.C. being filed earlier, it was held that the respondent cannot be deprived of her right to claim maintenance when the petition was already existing before the Court. It is submitted that in terms of Sec. 3 of The Muslim Women (Protection of Rights on Divorce) Act 1986, a divorced woman shall be entitled to reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. On the contrary, although the Revisional Court came to a conclusion that the Trial Court erred in not considering the plea of divorce put forth by the petitioner herein, nevertheless, proceeded to hold that the letter dtd. 13/1/2009 would not constitute a valid talaq, since there is no evidence on record to show that the talaq has been made in the presence of Kazi or in the presence of the father of the respondent, as required under Mohammadan Law. 9. In this regard, learned Counsel for the petitioner places reliance on the latest decision of a Division Bench of this Court in the case of Zaheer Vs. 9. In this regard, learned Counsel for the petitioner places reliance on the latest decision of a Division Bench of this Court in the case of Zaheer Vs. Gousia Bano, reported in (2020) SCC OnLine Kar 1759, wherein it was held that the talaaqnama (letter dtd. 11/8/2016) communicated by the husband to the wife along with the 'meher' and 'three months' iddat period maintenance amount is a valid talaq. The Division Bench proceeded to hold that there was reasonable cause for the husband to divorce the wife; there was attempt for reconciliation and the communication by letter pronouncing talaq would constitute a valid talaq. 10. The learned Counsel has also filed a memo dtd. 29/1/2021 along with an affidavit of the petitioner stating that the respondent has re-married one Mr.Isaq on 7/8/2016 at Mangaluru, and the Nikha was conducted by Mr. Sayyed Ameer (Khazi) and both the married couple reside together at Chikamagaluru. 11. Though notice was served on the respondent, she has not appeared before this Court or engaged the services of a learned Counsel. However, by order dtd. 8/12/2020 an amicus curiae was appointed by this Court. Smt. Bharmal Shirin Shabbirbhai consented to appear as amicus on behalf of the respondent. 12. The learned Counsel while referring to various decisions, submits that in the Commentary on Mohamedan Law by Mulla (19th Edn.) paragraph-310 (2) is dedicated to 'Talaq in writing'. It is pointed out that even in case of a talaq in writing, the talaknama may either be a record of the fact of an oral talaq; or it may be a deed by which the divorce is effected. However, the talaknama may be executed in the presence of the kazi or of the wife's father or of other witnesses. The deed is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is not so superscribed and addressed it is said to be in unusual form. However, it is submitted that even for a talaq in writing, it is mandatory requirement of law that it shall be executed atleast before witnesses, if not in the presence of the kazi or the wife's father. If it is not so superscribed and addressed it is said to be in unusual form. However, it is submitted that even for a talaq in writing, it is mandatory requirement of law that it shall be executed atleast before witnesses, if not in the presence of the kazi or the wife's father. Having regard to the evidence on record, it is submitted that the letter did not contain any information as to whether it was executed in the presence of a kazi or any other witnesses. It is therefore submitted that the letter dtd. 13/1/2009 does not constitute a valid talaq. Consequently, it is submitted that the contention of the petitioner that the respondent is not entitled for maintenance under Sec. 125 of the Cr.P.C. since the petitioner has divorced the respondent, should not be accepted. 13. Having heard the learned Counsels and having perused the petition papers, this Court finds that the case of the petitioner hinges on the validity of the letter dtd. 13/1/2009 which according to the petitioner is talaq in writing and the same was preceded by conciliation before the Jamath of Karkala in the presence of the respondent's brother who was authorized by the respondent to represent her in the conciliation. It is on record that the conciliation failed since there was a huge gap in the settlement of permanent alimony to the respondent. It is also an admitted fact that the letter dtd. 13/1/2009 which according to the petitioner is the talaq in writing, was placed as a piece of evidence in one of the proceedings between the parties. There has been no denial on the part of the respondent that she received the letter dtd. 13/1/2009 from the petitioner. 14. What is more relevant is the fact that the respondent is said to have re-married on 7/8/2016 and the respondent has remained absent in these proceedings. 15. Nevertheless, going by the decision of the Hon'ble Division Bench in the case of Zaheer (supra), although it was a case similar to the one on hand, it is necessary to notice that the talaq in writing was executed in the presence of two male witnesses. 15. Nevertheless, going by the decision of the Hon'ble Division Bench in the case of Zaheer (supra), although it was a case similar to the one on hand, it is necessary to notice that the talaq in writing was executed in the presence of two male witnesses. The Hon'ble Division Bench therefore proceeded to hold that the talaq in writing was preceded by attempts for reconciliation; the husband had sent along with the talaaqnama the meher and three months iddat period maintenance to the wife; and therefore it would constitute a valid talaq. 16. Having regard to these aspects, what we find in the present case is that the petitioner did not execute the talaq in writing in the presence of a kazi or any other witnesses. He has not offered 'meher' and/or 'three months iddat period maintenance amount' to the respondent. The respondent was therefore entitled for maintenance amount during the iddat period. However, since the respondent has remained absent, no information in this regard is made available. 17. Consequently, the writ petition stands disposed of with the modification of the impugned orders dtd. 15/10/2014 in M.C.No.52/2006 and order dtd. 28/5/2015 in Crl.R.P.No.55/2014, as held hereinabove. 18. The services of Smt. Bharmal Shirin Shabbirbhai, Amicus Curiae is appreciated and placed on record. The High Court Legal Services Committee shall pay Rs.10,000.00 as fee to the learned amicus curiae. It is ordered accordingly.