JUDGMENT : Heard Sri Raja Reddy Koneti, learned counsel for the petitioner and Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor for the 2nd respondent/State. 2. There is no representation for the respondent No.1, inspite of service with respect to which the proof of service was filed vide U.S.R.No.66325/2021. 3. The petitioner, along with her son filed a Miscellaneous Petition No.4 of 2003 in the Court of Junior Civil Judge-cum-Judicial First Class Magistrate, Ponnur under Section 125 of the Code of Criminal Procedure 1973 (in short Cr.P.C.) praying to direct the respondent/husband to pay Rs.2000/- per month to both the applicants, towards maintenance. It was filed inter alia on the averments that the petitioner (petitioner No.1 in the maintenance petition) is the legally wedded wife of the respondent No.1. The marriage took place on 02.04.2000. The respondent neglected and refused to maintain without any cause for no fault or disability on the part of the petitioner, who is not able to maintain her. 4. The respondent No.1 filed counter admitting his marriage with the petitioner but without dowry. The respondent submitted that he took due care of the disabled son (petitioner No.2 in the maintenance petition), but it was due to the negligence of the petitioner that the disease of the son increased. He tried to bring them back but of no avail in spite of mediations of the elders and Jumma Masjid Mosque committee, Pusuluru. The petitioner and her mother gave criminal complaints against the respondent and when the respondent advised the petitioner not to visit her mother the petitioner did not accede to the request. The respondent No.1 pleaded talaq, vide Talaqnama upon the petitioner as per Muslim Law and that the Talaqnama was sent to the petitioner vide registered post along with demand draft of Rs.315/-, which was received back with remarks 'Refused'. The petitioner was thus not entitled for any maintenance. 5. The petitioner examined herself as PW.1 and examined PWs.2 and 3 and marked Ex.P1 to prove her case. The respondent No.1 examined himself as RW.1 and examined RWs.2 and 3, the said arbiters and marked Exs.R1 to R4 in support of his case. 6. The petitioner was thus not entitled for any maintenance. 5. The petitioner examined herself as PW.1 and examined PWs.2 and 3 and marked Ex.P1 to prove her case. The respondent No.1 examined himself as RW.1 and examined RWs.2 and 3, the said arbiters and marked Exs.R1 to R4 in support of his case. 6. The learned Judicial First Class Magistrate, Ponnur allowed the Maintenance Petition, granting monthly maintenance @ Rs.800/- each to the petitioner (wife) as also to the son from the date of the petition, with costs against the respondent vide judgment and order dated 29.12.2004. 7. The respondent No.1 filed Criminal Revision Petition No.36/2005 under Sections 397 and 399 Cr.P.C, challenging the judgment and order dated 29.12.2004. The First Additional Sessions Judge, Guntur partly allowed the revision vide judgment dated 07.07.2006 setting aside the part of the judgment dated 29.12.2004 whereby maintenance was granted to the petitioner, but maintaining the grant of maintenance to the son. 8. In the background of the above facts the present criminal revision case was filed by the petitioner/wife. 9. Sri Raja Reddy Koneti, learned counsel for the petitioner submitted that there was no valid Talaq as per the Muslim Law. There was no communication of the Talaqnama. As per the own case of the respondent No.1, the registered envelope was returned unserved. The petitioner continued to be the wife of the respondent No.1 and was not the divorcee. 10. Sri Raja Reddy Koneti next submitted that a divorced Muslim wife is also entitled to maintenance under Section 125 Cr.P.C. for her whole life unless she remarries, and it cannot be restricted to iddat period only. 11. Sri Soora Venkata Sainath, learned counsel for the 2nd respondent/State submitted that there was no illegality in the grant of maintenance to the petitioner by the learned Magistrate and its reversal by the Revisional Court cannot be sustained. He placed reliance on the judgment of Hon’ble the Apex Court in the case of Shamim Ara v. State of Uttar Pradesh and Another (2002) 7 SCC 518 ). 12. I have considered the submissions advanced by the learned counsels for the petitioner and respondent No.2 and perused the material on record. 13. He placed reliance on the judgment of Hon’ble the Apex Court in the case of Shamim Ara v. State of Uttar Pradesh and Another (2002) 7 SCC 518 ). 12. I have considered the submissions advanced by the learned counsels for the petitioner and respondent No.2 and perused the material on record. 13. Two points arise for consideration and determination by this Court which are as follows:- i. Whether the petitioner is a 'divorced wife'or 'wife' of the respondent No.1 depending upon the validity or otherwise of the Talaq as claimed upon her, as per the Muslim Law? ii. Whether the petitioner is entitled for maintenance from the respondent No.1, and if yes, upto what period? 14. The learned Magistrate held that there was no valid dissolution of the marriage as per Muslim Law. Except the copy of the Talaqnama, undelivered registered post with the demand draft, postal receipt and counter foil of the demand draft, no other evidence was produced by the respondent No.1 of the pronouncement of the Talaq and the communication of talaqnama to the petitioner. The petitioner as such was entitled for maintenance from the respondent No.1. 15. The learned Revisional Court held that the petitioner was not entitled for maintenance after divorce beyond iddat period. It held the petitioner to be the divorced wife as in its view the respondent No.1 had followed the due procedure as per Muslim law before pronouncement of Talaq. It held that from Ex.R1 (Talaknama), it was revealed that the respondent No.1 pronounced Triple Talaq on 30.07.2002 in the presence of the elders, for clear reasons, and from Ex.R2 (counter foil of DD receipt) it was revealed that the respondent No.1 had taken a demand draft of Rs.525/- towards maintenance, whereas Ex.R3 (the postal receipt) revealed that the respondent send the Talaknama to the petitioner which the petitioner willfully and intentionally refused to take vide Ex.R4 (undelivered registered cover addressed to the petitioner). The refusal to take notice as per the revisional Court amounted to service of notice of Talaknama. Prior to pronouncement of talaq, the mediators on both sides tried to pacify the matter but of no use. 16. Only on the above ground that the petitioner was divorced, the revision was allowed and the order granting maintenance to the petitioner was set aside. 17. The Court proceeds to consider if there was valid talaq as per Muslim law. Prior to pronouncement of talaq, the mediators on both sides tried to pacify the matter but of no use. 16. Only on the above ground that the petitioner was divorced, the revision was allowed and the order granting maintenance to the petitioner was set aside. 17. The Court proceeds to consider if there was valid talaq as per Muslim law. 18. In the 'Commentaries on Mohammedan Law' by B.R. Verma, 12 Edition (2013), published by Law Publishers (India) Pvt. Ltd., Allahabad, Chapter V section 58 deals with modes of divorce which reads as under: 'Section 58. Modes of talaq.— A talaq may be effected in the following ways: (1) By a single pronouncement followed by abstinence from sexual inter course during the period of talaq: Provided that in the case of a consummated marriage, with a menstruating wife, the pronouncement is made during a tuhr in which the husband had no sexual intercourse. This is called talaq-ahsan. (2)(a) In the case of unconsummated marriage, by a single pronouncement, even though during a period of menstruation. (b) In the case of a consummated marriage by three pronouncements made— (i) in the case of a menstruating wife-during each of three successive tuhrs; and (ii) in the case of a non-menstruating wife after intervals of 30 days between each pronouncement; with abstinence from sexual intercourse during these tuhrs on periods and in the case of a pregnant wife, till delivery. This is called talaqhasan. (3)(a) By a single pronouncement— (i) indicating a clear intention to dissolve the marriage irrevocably; or (ii) made during a tuhr in which there was sexual intercourse; or (iii) made during menstruation of a wife whose marriage was consummated. (b) By three pronouncements either in one sentence or separately. This is called talaq-ul-bidaat. Explanation.— Tuhr is the period of purity between menstruations.' 19. Section 59, then provides manner of giving divorce and reads as under: 'Section 59- Talaq how pronounced.— (1) A talaq may be effected by words expressed either orally or in writing or by signs where the husband is unable to do so. (2) An oral talaq becomes effective— (a) if the words used are express or clearly show an intention to divorce; or (b) where the words used are not express, if it is proved that there was an intention to effect a divorce. (2) An oral talaq becomes effective— (a) if the words used are express or clearly show an intention to divorce; or (b) where the words used are not express, if it is proved that there was an intention to effect a divorce. (3) A talaq in writing becomes effective— (a) if the writing is in the customary form, showing the name of the writer and the addressee; or (b) if it is proved that there was an intention to effect a divorce. (4) It is not necessary that a talaq should be pronounced in the presence of the wife or should be addressed to her. (5) A talaq may be pronounced conditionally or so as to take effect immediately or at a future time or on the happening of any contingency.' 20. As per Mahomedan Law, a divorce by the husband is talaq and it has its oral as well as written forms. There is no particular written form prescribed. Talaq reduced in a Talaqnama may be the record of the fact of an oral Talaq or it may be the deed by which the divorce is effected. A talaq in writing becomes effective if the writing is in customary form showing the name of the writer and the addressee or if it is proved that there was an intention to effect a divorce. There has to be pronouncement of talaq either orally or in writing or even by signs where the husband is unable to do so i.e., to pronounce orally or in writing. These are only the manner of giving divorce. Whatever be the manner of giving talaq, in all forms the husband has to follow the prescribed procedure of pronouncement of talaq, after the reconciliation process has been in-effected or in vain. 21. In Shamim Ara (supra) the Muslim wife had filed an application under Section 125 Cr.P.C. against husband claiming maintenance, which was refused on the ground that she was already divorced by her husband. The husband claimed protection behind the Muslim Women (Protection of Rights on Divorce) Act, 1986. 21. In Shamim Ara (supra) the Muslim wife had filed an application under Section 125 Cr.P.C. against husband claiming maintenance, which was refused on the ground that she was already divorced by her husband. The husband claimed protection behind the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Hon’ble Apex Court held that law of talaq as ordained by Holy Quran, 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 Hon’ble Apex Court further held that the Talaq to be effective has to be pronounced. The term "pronounced" means to proclaim, to utter formally, to utter rhetorically, to utter, to declare, to articulate. 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. The husband ought to have adduced evidence and proved the pronouncement of Talaq. 22. It is apt to refer paragraph Nos.13, 14 and 16 of Shamim Ara (supra) as under:- '13. 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) sitting singly in Sri Jiauddin Ahmed v. Anwara Begum {(1981) 1 GLR 358} and later speaking for the Division Bench in Rukia Khatun v. Abdul Khalique Laskar {(1981) 1 GLR 375}. In Jiauddin Ahmed's case {(1981) 1 Gau LR 375), 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. 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 recognize the necessity, in exceptional circumstances, of keeping the way open for its dissolution (Para 6). Quoting in the judgment several Holy Quranic 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 Quran does not brook. The correct law of talaq as ordained by the Holy Quran 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 Quran, 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 Bombay view which, in their opinion, did not lay down the correct law. 14. We are in respectful agreement with the above said observations made by the learned Judges of High Courts. …..' 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.1030). There is no proof of talaq having taken place on 11.7.1987. …..' 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.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. 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. The respondent No. 2 ought to have adduced evidence and proved the pronounced 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 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 No. 2, could not have been read in evidence as relevant and of any value.' 23. In Shayara Bano v. Union of India (2017) 9 SCC 1 ), the majority view endorsed and reiterated what was declared in Shamim Ara (supra). 24. It is apt to reproduce paragraph Nos.17, 18, 19 and 27 of the judgment by Hon’ble Kurian Joseph, J in Shayara Bano (supra) as under:- '17. In Shayara Bano v. Union of India (2017) 9 SCC 1 ), the majority view endorsed and reiterated what was declared in Shamim Ara (supra). 24. It is apt to reproduce paragraph Nos.17, 18, 19 and 27 of the judgment by Hon’ble Kurian Joseph, J in Shayara Bano (supra) as under:- '17. After a detailed discussion on the aforementioned cases, it has been specifically held by this Court in Shamim Ara { (2002) 7 SCC 518 : 2002 SCC (Cri) 1814}, at paragraph 15 that: (SCC p.527) '15. … There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.' It has to be particularly noted that this conclusion by the Bench in Shamim Ara (supra) is made after 'respectful agreement' with Jiauddin Ahmed (supra) that: (Shamim Ara (supra), SCC p.526, para 13) '13. … 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.' In the light of such specific findings as to how Triple Talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi on Triple Talaq in Shamim Ara (supra). 18. Shamim Ara (supra) has since been understood by various High Courts across the country as the law deprecating Triple Talaq as it is opposed to the tenets of the Holy Quran. Consequently, Triple Talaq lacks the approval of Shariat. 19. The High Court of Andhra Pradesh, in Zamrud Begum v. K. Md. Haneef {2002 SCC Online AP 1063 : (2003) 3 ALD 220 }, is one of the first High Courts to affirm the view adopted in Shamim Ara (Supra). The High Court, after referring to Shamim Ara (Supra) and all the other decisions mentioned therein, held in paragraphs 13 and 17 as follows: (Zamrud Begum (Supra), SCC Online AP) '13. It is observed by the Supreme Court in the above said decision that talaq may be oral or in writing and it must be for a reasonable cause. It must be preceded by an attempt of reconciliation of husband and wife by two arbitrators one chosen from the family of the wife and other by husband. It is observed by the Supreme Court in the above said decision that talaq may be oral or in writing and it must be for a reasonable cause. It must be preceded by an attempt of reconciliation of husband and wife by two arbitrators one chosen from the family of the wife and other by husband. If their attempts fail then talaq may be effected by pronouncement. The said procedure has not been followed. The Supreme Court has culled out the same from Mulla and the principles of Mahammedan Law. 17. I am of the considered view that the alleged talaq is not a valid talaq as it is not in accordance with the principles laid down by the Supreme Court. If there is no valid talaq the relationship of the wife with her husband still continues and she cannot be treated as a divorced wife….' (emphasis supplied) 27. Fortunately, this Court has done its part in Shamim Ara (supra). I expressly endorse and reiterate the law declared in Shamim Ara (Supra). What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. 25. It is further apt to reproduce paras-102 to 104 of the judgment of the Hon’ble R.F.Nariman, J in Shayara Bano (supra) as under: 102. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of talaq. We have noticed how in Fyzee's book [Tahir Mahmood (Ed.), Asaf A.A. Fyzee, Outlines of Muhammadan Law, 5th Edn., 2008.], the Hanafi School of Shariat law, which itself recognises this form of talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. 103. Indeed, in Shamim Ara v. State of U.P. [Shamim Ara v. State of U.P., (2002) 7 SCC 518 : 2002 SCC (Cri) 1814] this Court after referring to a number of authorities including certain recent High Court judgments held as under : (SCC p. 526, paras 13-14) '13. 103. Indeed, in Shamim Ara v. State of U.P. [Shamim Ara v. State of U.P., (2002) 7 SCC 518 : 2002 SCC (Cri) 1814] this Court after referring to a number of authorities including certain recent High Court judgments held as under : (SCC p. 526, paras 13-14) '13. … The correct law of talaq as ordained by the Holy Quran 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 case [Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, 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 Bombay views which, in their opinion, did not lay down the correct law. 14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts.' 104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad [Rashid Ahmad v. Anisa Khatun, 1931 SCC OnLine PC 78 : (1931-32) 59 IA 21 : AIR 1932 PC 25 ], such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara [Shamim Ara v. State of U.P., (2002) 7 SCC 518 : 2002 SCC (Cri) 1814]. This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognise and enforce Triple Talaq, is within the meaning of the expression 'laws in force' in Article 13(1) and must be struck down as being void to the extent that it recognises and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.' 26. In the case of Shayara Bano (supra) the Hon’ble Apex Court by majority set aside the practice of triple talaq-e-Biddat. The Hon’ble Apex Court held that a disapproved form of divorce is talaq by triple declarations in which three pronouncements are made in a single tuhr, either in one sentence e.g. 'I divorce thee triply or thrice' or in three sentences 'I divorce thee, I divorce thee, I divorce thee' etc., practice. The correct law of Talaq as ordained by the Holy Quran 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. It was held that, given the fact that Triple Talaq is instant and irrevocable, any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. This form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. This form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. Finally by majority, it was held that the practice of Triple Talaq is set aside. 27. It is thus settled in law that the pronouncement of Talaq is to be proved by evidence. Talaq must be for a reasonable cause. It must be preceded by an attempt of reconciliation by husband and wife by two arbiters; and the two arbiters will be, one each, chosen from the family of the husband and the wife respectively. 28. In the present case, the plea of the husband in the written statement before the Court is that the divorce was given on 30.07.2002 and he filed copy of the talaqnama with such written statement. 29. The official true English version of the Talaqnama, dated 30.07.2022 (Ex.R1) which is placed on record reads as under: 'To Patan Gowsiyabi, Husband-Patan John Saida, C/o.S/o.Shaik Abdul Haseem, Pusuluru, Peddanandipadu Mandal. This Talaknama is written by John Saida, S/o. Patan Allabaksh, R/o. Pedanandipadu village. My Nikha with you was performed in Pusuluru Village about three years back as per Mohammedian Customs in the presence of elders. We both of you lived together in Pusuluru Village for a period of one year without any disputes. On the next year of Nikha, a male child was born to us by name Allahbaksh. You at the instance of evil preachings and bad behaviour of your mother by name Chand Bibi, you after giving birth to male child, you started harassing me and my mother mentally and abused my mother in filthy language and you stated that you would kill me and my mother by giving the poison. As I stated to you not to allow your mother to our house as your mother is having illegal intimacy with other person and that is not good for us, so you and your mother stated that you would kill me and my mother and not only that, on 28.06.2002 you gave report to the Police of Pedanandipadu against me alleging that I beat you. The elders of our village came to Pedanandipadu Police Station and stated actual facts to the Police and then the Police suggested us to live amicably. In spite of the suggestion given by the Police, you did not join the matrimonial home and you went to your parents house along with your mother. Even if you come to the matrimonial house for leading conjugal life, as there is a threat to my life and to the life of my mother, I came to conclusion that we cannot live as husband and wife and so I am stating 'Talaq, Talaq, Talaq' for three times to you and dissolving our marriage. At the time of Nikha as Rs.525/- Mehar was given, for 3 months period of iddat at the rate of one rupee per Hundred, I am sending Rs.300/- through Demand Draft, D.D.No.301001, dt.30.07.2002. Sd/- Patan John Saida, (Patan John Saida) Father-Allahbaksh, Pusuluru village, Pedanandipadu Mandal Witnesses:- (1) Sk.Meerasa (2) Patan Chinna Saidulu' 30. The talaqnama shows triple talaq in one go, i.e., at the same time in one sentence. The talaqnama, may only be the record of fact of an oral talaq or it may also be a deed by which the divorce is effected. The talaqnama is dated 30.07.2002. Even if it is taken as deed by which the divorce is effected, and addressed to the wife by the respondent No.1, and therefore, in a customary form, even then the respondent/husband had to prove that the talaq in written form was as per the Mahomedan Law, i.e., the writing must show that while divorcing, the true form of talaq was observed i.e., observing the time gap between three pronouncements in writing. Three pronouncements of talaq at the same time i.e., pronouncement of talaq at single go, divorcing thrice at the same time is not as per Muslim Law. The talaqnama, as in the present case, does not effect the talaq upon the petitioner. Divorce in writing, to be effected, must also comply with the pre-requisites of a valid talaq as per the Muslim Law. What cannot be done orally, i.e., by pronouncing talaq thrice in one sentence or at the same time without observing the required time gap can also not be done in writing. Talaq, oral or written must comply with pre-requisites of talaq as per Muslim law to be effective. 31. What cannot be done orally, i.e., by pronouncing talaq thrice in one sentence or at the same time without observing the required time gap can also not be done in writing. Talaq, oral or written must comply with pre-requisites of talaq as per Muslim law to be effective. 31. In Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan (2002 SCC Online Bom 440) the Full Bench of the High Court of Bombay held that even if such statement in writing or made orally before the Court is supported by a talaqnama which may be a record of fact of a oral talaq or may be the deed by which the divorce is effected, but that supportive document by itself does not lead to a conclusion that the talaq was valid, effective and legal. It was held that in most of the cases, the talaqnamas are customary and unless the factum of talaq is proved, these documents in isolation have no sanctity in support of a valid talaq. Mere existence of the document i.e., the talaqnama, does not make the talaq valid or legal and therefore, it is necessary that the factum of talaq and the stages it is preceded by are required to be proved before the Court, if disputed by the wife. 32. In Dagdu Chotu Pathan (supra) the Bombay High Court further considered specific cases with respect to different pleas of husband having divorced his wife. One of the specific pleas was, as is in the present case, i.e., 'in the written statement filed before the Court the husband takes a plea of divorce given on some date in the past and files a copy of the talaqnama and/or divorce certificate with such a written statement'. The Bombay High Court held that if the wife disputed about its factum, it cannot be valid and operative. Such divorce will be fictitious and inoperative, unless the husband proves his plea of any of these forms of talaq, before the Court by leading evidence. 33. It is apt to reproduce paras-61, 62, 66 to 68, 71 & 72 of Dagdu Chotu Pathan (supra) as under: '61. The above discussion does indicate that mere pronouncement of Talaq by the husband or merely declaring his intentions or his acts of having pronounced the Talaq is not sufficient and does not meet the requirements of law. 33. It is apt to reproduce paras-61, 62, 66 to 68, 71 & 72 of Dagdu Chotu Pathan (supra) as under: '61. The above discussion does indicate that mere pronouncement of Talaq by the husband or merely declaring his intentions or his acts of having pronounced the Talaq is not sufficient and does not meet the requirements of law. In every such exercise of right to Talaq the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for Talaq. Conveying his intentions to divorce the wife are not adequate to meet the requirements of Talaq in the eyes of law. All the stages of conveying the reasons for divorce, appointment of arbiters, the arbiters resorting to conciliation proceedings so as to bring reconciliation between the parties and the failure of such proceedings or a situation where it was impossible for the marriage to continue, are required to be proved as conditions precedent for the husband's right to give Talaq to his wife. It is, thus, not merely the factum of Talaq but the conditions preceding to this stage of giving Talaq are also required to be proved when the wife disputes the factum of Talaq or the effectiveness of Talaq or the legality of Talaq before a Court of law. Mere statement made in writing before the Court, in any form, or in oral depositions regarding the Talaq having been pronounced sometimes in the past is not sufficient to hold that the husband has divorced his wife and such a divorce is in keeping with the dictates of Islam. 62. It is a fallacious argument that in case of a minor or a woman past menopause, the oral Talaq in the form of Ahsan or Hasan could be pronounced by the husband at any time or at his sweet will as in such cases there is no Iddat. However, the period of Iddat has been specifically defined and even in such cases there is a waiting period of three lunar months even though there is no occurrence of menstruation. The view taken by this Court in the case of Chandbi Ex. w/o Bandeshah Mujawar (supra) cannot be accepted as a good law. 66. However, the period of Iddat has been specifically defined and even in such cases there is a waiting period of three lunar months even though there is no occurrence of menstruation. The view taken by this Court in the case of Chandbi Ex. w/o Bandeshah Mujawar (supra) cannot be accepted as a good law. 66. Let us consider now specific cases of husband taking the plea of having divorced his wife: (a) In the written statement filed before the Court the husband takes a plea of divorce given on some date in the past and files a copy of the Talaqnama and/or divorce certificate with such a written statement.......' 67. And, in support thereof, copy of the Talaqnama or deed of divorce or certificate of divorce is produced. 68. On the proceedings initiated by the wife before a competent Court the divorce allegedly given by the husband in the first three forms (a) to (c), if disputed about its factum, cannot be valid and operative. Such a divorce will be fictitious and inoperative unless the husband proves his plea of any of these forms of Talaq before the Court by leading evidence. Mere taking such plea, even in a statement on oath, does not by itself operate as a divorce from the date it is so made because there are conditions precedent to such a form of Talaq and it is required to be exercised during a particular period. The husband is required to discharge his burden of proving that he had no physical relationship with the wife during the waiting period and the reasons for exercising such a right are required to be putforth. The factum of conciliation or arbitration is also one of the conditions preceding the process of Talaq in any of these forms namely 'Ahsan' and 'Hasan'. 71. However, in the last contingency the divorce becomes effective and irrevocable forthwith and the wife becomes 'Haram' for the husband. If the husband claims to have exercised his right of divorce in the form of Biddat/Bidai or Rajai, in the written statement on an earlier occasion the divorce is complete and irrevocable provided the factum of due Talaq given in this form, on an earlier occasion, is duly proved before the Court. If the husband claims to have exercised his right of divorce in the form of Biddat/Bidai or Rajai, in the written statement on an earlier occasion the divorce is complete and irrevocable provided the factum of due Talaq given in this form, on an earlier occasion, is duly proved before the Court. The words uttered for giving Talaq in these two forms or in any of them are required to be proved before the Court and mere statement of the husband or the proof in support thereof by way of Talaqnama or deed of divorce or certificate of divorce will not be sufficient to prove the factum of having exercised this power sometimes in the past. This view is in consonance with the law laid down by the Privy Council in Anisa Khatun's case (supra). 72. We accordingly hold, with profound respect, that the view taken in Jaitunbi's case (supra) does not meet the requirements of the Mahomedan Personal Law for a valid and irrevocable divorce. The plea taken by the husband in his written statement that he had given Talaq at an earlier date shall not amount to the dissolution of marriage under the Muslim Personal Law from the date on which such a statement was made unless such a Talaq is duly proved and it is further proved that it was given by following the conditions precedent viz. that of arbitration/reconciliation and for valid reasons and more so when the mode of divorce alleged to have been given in the 'Ahsan' or 'Hasan' form. The factum of divorce is required to be proved, including the conditions precedent therefor, by evidence both oral and documentary, when the same is disputed by the wife before a competent Court of law. We agree with the view taken subsequently by a Division Bench of this Court in the case of 'Saira Banu' (supra) and further lay down the clarifications, as set out hereinabove. We hold that the view taken by the Gauhati High Court in the case of Mast. Rukia Khatun (supra) and Zeenat Fatima Rashid (supra) is more in tune with the ethos of Islamic Personal Law. We hold that the view taken by the Gauhati High Court in the case of Mast. Rukia Khatun (supra) and Zeenat Fatima Rashid (supra) is more in tune with the ethos of Islamic Personal Law. However, if the husband relies upon the Biddat or Rajai form of Talaq given at an earlier occasion either in his written statement or in his oral depositions, he is required to prove the factum of the same by leading evidence before the Court, if disputed by the wife...........' 34. The Court now adverts to the evidence on record, not to re-appreciate the evidence in the exercise of Revisional Jurisdiction, but to determine if based thereon, the finding of the Magistrate or of the Revisional Court is according to law. 35. A perusal of the evidence of RW.2 and RW.3, who are the arbiters/witnesses to prove the factum of mediation, shows that some reconciliation efforts were made which did not succeed. These witnesses stated that they went to the Police Station and to the house of the mother of PW.1 (petitioner), sent by the respondent/ husband. It has been settled in law that the attempt of reconciliation must be by two arbiters, one each, chosen by the family of the wife and the husband respectively. RW.2 and RW.3 were sent only by the respondent/husband. There is nothing on record to show that the Talaq was preceded by an attempt of reconciliation by two (02) arbiters, one chosen by the husband and one chosen by the wife from their respective family. 36. The learned Magistrate recorded that the alleged reconciliation, as deposed by the two (02) witnesses, RW.2 and RW.3, in their statements was not filed before the Court. They failed to file their identification as well to prove that they were the executive body members of the Jumma Masjid, as also that they passed any resolution of reconciliation. The Revisional Court did not advert to this aspect of the matter, which was considered by the learned Magistrate, as in the absence of resolution of reconciliation alleged to have been entered as per the statements of RW 2 and RW 3 the reconciliation prior to talaq could not have been proved. 37. Pronouncement of Talaq is to be proved by evidence as held in Shamim Ara (supra). The evidence of RW.2 and RW.3 does not prove pronouncement of Talaq by the respondent No.1 upon the petitioner. 37. Pronouncement of Talaq is to be proved by evidence as held in Shamim Ara (supra). The evidence of RW.2 and RW.3 does not prove pronouncement of Talaq by the respondent No.1 upon the petitioner. Any witnesses of talaqnama has also not been produced in evidence. There is no evidence to prove the pronouncement of Talaq by any witness, except the respondent himself, as RW.1, on the basis of Talaqnama. 38. Now the Court proceeds to consider if talaq was communicated to the petitioner/wife. 39. On the point of communication of Talaqnama to the petitioner/wife, the Magistrate recorded that it is admitted case that the Talaqnama sent through registered post was not served upon her. On perusal of the evidence, it is evident that PW.1 deposed in cross examination that "it is not true to suggest that the respondent sent a talaknama and also payment of Rs.300/-". The witness PW.2 also in his cross examination deposed 'it is not true to suggest that the respondent sent Talak through registered post and I refused to receive the same". There was clear denial of service of the registered post of Talaqnama as also denial of refusal to receive the registered post. The respondent No.1 did not produce the concerned postman to prove the endorsement of 'refusal' made on the registered envelope. 40. Section 114 (e) and (f) of the Indian Evidence Act, 1872 reads as under: '114 Court may presume existence of certain facts.' The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume— (e) That judicial and official acts have been regularly performed; As to illustration (e)— A judicial act, the regularity of which is in question, was performed under exceptional circumstances; (f) That the common course of business has been followed in particular cases; As to illustration (f) — The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;' 41. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;' 41. Section 4 of the Indian Evidence Act defines the expression 'may presume' which reads as under: 'May presume'- 'Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.' 42. According to Section 4, whenever it is provided by the Evidence Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. The presumption under clauses (e) and (f) of Section 114, the Court may either regard such fact as proved unless and until it is disproved or the Court may call for proof of all those facts with respect to which the presumption is raised. Use of the expression 'may presume' in Section 114 makes the presumptions therein, 'rebuttable presumptions', and when the party, against whom those presumptions are drawn, produce evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over and then the evidence will determine the true nature of the fact to be established. 43. In Partap Singh v. Shiv Ram (2020) 11 SCC 242 ) the Hon’ble Apex Court held that a presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of other evidence to dislodge conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. 44. Paragraphs No.23 and 24 of Pratap Singh (supra) are reproduced as under: '23. In Sodhi Transport Co. v. State of U.P. [Sodhi Transport Co. Then the evidence will determine the true nature of the fact to be established. 44. Paragraphs No.23 and 24 of Pratap Singh (supra) are reproduced as under: '23. In Sodhi Transport Co. v. State of U.P. [Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486 : 1986 SCC (Tax) 410], this Court was considering Section 28-B of the Uttar Pradesh Sales Tax Act, 1948 which raises a presumption of sale of goods in a manner prescribed therein. This Court considered Section 4 of the Evidence Act and also the previous judgments and held as under: (SCC p. 496, para 14) '14. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances.' 24. In another judgment in Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823], this Court examined the presumption of fact in proceedings under Section 138 of the Negotiable Instruments Act, 1881. It was held that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. It was held as under: (SCC p. 521, para 21) '21. It was held that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. It was held as under: (SCC p. 521, para 21) '21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.' 45. Section 27 of the General Clauses Act, 1897 reads as under: '27. Meaning of service by post. —Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.' 46. In C.C.Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555 ) the Hon’ble Apex Court held that Section 114 of the Evidence Act enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the Court can presume that the common course of business has been followed in particular cases. Consequently, the Court can presume that the common course of business has been followed in particular cases. When applied to communications sent by the post, Section 114 enables the Court to presume that in common course of natural events, the communications would have been delivered at the address of the addressee. The Hon’ble Apex Court further held that the presumption that is raised under Section 27 of the General Clauses Act is a far stronger presumption. While Section 114 of the Evidence Act refers to a general presumption, Section 27 of the General Clauses Act refers to a specific presumption. 47. In C.C.Alavi Haji (supra), the Hon’ble Apex Court further held that Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. When a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in the station' due service has to be presumed. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 48. It is apt to refer paragraphs-13 and 14 in C.C.Alavi Haji (supra) as under: '13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: '27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.' 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [ (1992) 1 SCC 647 : AIR 1992 SC 1604 ] ; State of M.P. v. Hiralal [ (1996) 7 SCC 523 ] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.' 49. The presumption raised under Section 114 of the Indian Evidence Act is a general presumption whereas the presumption that is raised under Section 27 of the General Clauses Act is specific presumption and is a far stronger presumption. Consequently, where the presumption raised by the Court is referable to Section 114 of the Evidence Act and not to Section 27 of the General Clauses Act, such presumption could be rebutted by producing evidence which may not be as strong as to rebut the presumption raised under Section 27 of the General Clauses Act. Section 27 of the General Clauses Act applies where any Central Act or Regulation made after commencement of the General Clauses Act authorizes or requires any document to be served by post. Serving Talaqnama by post is not authorized or required by any Central Act or Regulation. Any State Act or regulation also does not authorize or require the Talaqnama to be served by post. Therefore, the presumption under Section 27 cannot be applied to the service of Talaqnama even if sent by registered post. The presumption may be raised under Section 114 (e) and (f) of the Evidence Act, which is not as strong as presumption under Section 27 of the General Clauses Act. 50. Therefore, the presumption under Section 27 cannot be applied to the service of Talaqnama even if sent by registered post. The presumption may be raised under Section 114 (e) and (f) of the Evidence Act, which is not as strong as presumption under Section 27 of the General Clauses Act. 50. The petitioner herein produced the evidence of herself as PW 1 and the witness PW 2 deposing that the registered envelop was not served and that there was no refusal to receive the same. The presumption against the petitioner drawn about service by refusal, was over. Now it was for the respondent No.1 by adducing evidence to prove the true nature of the fact, i.e., that there was refusal as noted on the registered post. The initial burden on the 1st respondent to prove service of talaqnama was discharged in view of the presumption in law in his favour, but in view of the evidence led by the petitioner, the burden was now on the 1st respondent to prove the real fact by adducing evidence as the purpose of presumption was over, it being a rebuttable presumption. 51. Recently, in Vishwabandu v. Krishna (2021 SCC Online SC 828) the summons issued by the registered post was received back with postal endorsement of 'refusal' and trial Court had proceeded after declaring that the summons had been duly served on the defendant. The Hon’ble Apex Court held that the order passed by the trial Court declaring that the summons had been duly served on the defendant was completely in conformity with legal requirements. Sub-rule (5) of Order V Rule 9 of the CPC was referred to, which provided that if the defendant or his agent had refused to take delivery of the postal article containing summons, the Court issuing the summons shall declare that the summons had been duly served on the defendant. With respect to the Section 27 of the General Clauses Act, the judgment in C.C.Alavi Haji (supra) was also referred. In the present case, Order V Rule 9(5) CPC is not applicable, which provision is with respect to the summons sent by the Court by post and specifically provided for, by the Central Act, i.e., the Code of Civil Procedure. 52. In the present case, Order V Rule 9(5) CPC is not applicable, which provision is with respect to the summons sent by the Court by post and specifically provided for, by the Central Act, i.e., the Code of Civil Procedure. 52. It is settled in law that an affirmative is to be proved and a negative is generally not to be proved, unless it is so provided by law by placing burden to prove negative on a particular person. In Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54 ) in a different context, the Hon’ble Apex Court held that the Courts must be on guard to see that merely on the application of presumption the same may not lead to injustice or mistaken conviction. It held that it is not that a negative can never be proved but there are cases where such difficulties are faced. 53. It is apt to refer paras-41 to 44 of Krishna Janardhan Bhat (supra) as under: '41. Mr Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee [ (2001) 6 SCC 16 : 2001 SCC (Cri) 960] wherein this Court held: (SCC pp. 24-25, paras 22-23) '22. … Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. A fact is said to be proved when, 'after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.' (See also K.N. Beena v. Muniyappan [ (2001) 8 SCC 458 : 2002 SCC (Cri) 14].) 42. We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith. 43. But, we may at the same time notice the development of law in this area in some jurisdictions. 44. The presumption of innocence is a human right. (See Narendra Singh v. State of M.P. [ (2004) 10 SCC 699 : 2004 SCC (Cri) 1893] , Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [ (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] and Rajesh Ranjan Yadav v. CBI [ (2007) 1 SCC 70 : (2007) 1 SCC (Cri) 254].) Article 6(2) of the European Convention on Human Rights provides: 'Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.' Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasised. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasised. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e.g. honest and reasonable mistake of fact. In a recent article The Presumption of Innocence and Reverse Burdens: A Balancing Duty published in 2007 CLJ (March Part) 142 it has been stated: 'In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice—where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment.' 54. The Andhra Pradesh High Court in Chidamana Venkata Ramana v. Puwada Venkateswara Rao {CRP.No.2190 of 1968, decided on 19.08.1969} relying in the case of Meghji K.Patel v. Kundanmal (1968 Mah.LJ 490) by Bombay High Court held that the notice was not served; In Bombay case, a writ of summons, sought to be served by registered post, had been returned with the endorsement 'refused'. The Bombay High Court held that the presumption of service had been repelled by the defendant's statements on oath that he has not refused the summons as it was never brought to him. The statement of the defendant on oath prevailed to rebut the presumption in the absence of the evidence of postman. The Hon'ble Apex Court, in Puwada Venkateswara Rao v. Chidamana Venkata Ramana ( AIR 1976 SC 869 ), held that on facts found, the view expressed could not be held to be incorrect. The Hon’ble Apex Court held that in the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. 55. The Hon’ble Apex Court held that in the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. 55. It is apt to reproduce Paragraph Nos.8, 9 and 10 of Puwada Venkateswara Rao (supra), as under:- '8. A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent- landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal, to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held G that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex-parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect. 9. In Nirmalabala Debi v. Provat Kumar Basa, it was held by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the latter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him. This is also a correct statement of the law. 10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. This is also a correct statement of the law. 10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio disdained of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.' 56. In view of the aforesaid, this Court finds that the presumption of service by filing the registered envelop with an endorsement 'refusal' was raised, but that presumption stood rebutted in view of the evidence of PW 1 and PW 2, who clearly deposed that any registered post was not served nor there was any refusal to receive the same. There could be no other evidence to prove the negative, that the petitioner did not refuse to receive the registered post. It would be highly unreasonable to expect that the postman concerned would appear to depose at the instance of the petitioner or in her favour contrary to the endorsement of refusal. However, the endorsement of refusal could be proved by the 1st respondent by producing the postman, which was not done. Therefore, the presumption having been rebutted and the 1st respondent not having produced any other evidence to prove that the real fact was that there was service of Talaqnama by refusal, the service of talaqnama upon petitioner by refusal could not be proved. Therefore, the presumption having been rebutted and the 1st respondent not having produced any other evidence to prove that the real fact was that there was service of Talaqnama by refusal, the service of talaqnama upon petitioner by refusal could not be proved. There is nothing on record to show that the denial of service by the petitioner as deposed was incorrect either from her own admission if any or conduct or that she had full knowledge of the Talaqnama and knowingly actually refused the same. The finding recorded by the Revisional Court that in view of the refusal, there was deemed service of Talaqnama on the petitioner, cannot be legally sustained. 57. On the point of maintenance, it is apt to refer the following judgment in which the controversy has been set as rest. 58. In Danial Latifi and Another v. Union of India (2001) 7 SCC 740 ), the constitution bench of the Hon'ble Apex Court considered the question of grant of maintenance to a Muslim divorcee wife and summarized the principles of law holding that the Muslim divorcee wife is entitled for maintenance even beyond iddat period which extends to her whole life unless she remarries. 59. It is apt to reproduce paragraph No.36 of Danial Latifi (supra) as under: '36. While upholding the validity of the Act, we may sum up our conclusions: (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. (2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.' 60. In Shabana Bano v. Imran Khan (2010) 1 SCC 666 ), Hon’ble the Apex Court reiterated that even if a Muslim women has been divorced she would be entitled to claim maintenance from her husband under Section 125 Cr.P.C. after the expiry of the period of iddat also, as long as she does not remarry. It was further held that the petition under Section 125 Cr.P.C would be maintainable before the Family Court as long as she does not remarry. 61. It is apt to refer Paragraph Nos.20 to 24 of Shabana Bano (supra) as under:- '20. In the light of the findings already recorded in earlier paras, it is not necessary for us to go into the merits. The point stands well settled which we would like to reiterate. 21. The appellant's petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 CrPC cannot be restricted for the iddat period only. 22. The learned Single Judge appeared to be little confused with regard to different provisions of the Muslim Act, the Family Act and CrPC and thus was wholly unjustified in rejecting the appellant's revision. 23. Cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi [ (2001) 7 SCC 740 : (2007) 3 SCC (Cri) 266] and Iqbal Bano [ (2007) 6 SCC 785 : (2007) 3 SCC (Cri) 258] would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 24. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 CrPC after the expiry of period of iddat also, as long as she does not remarry. 24. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 CrPC after the expiry of period of iddat also, as long as she does not remarry. As a necessary consequence thereof, the matter is remanded to the Family Court at Gwalior for its disposal on merits at an early date, in accordance with law. The respondent shall bear the costs of litigation of the appellant. Counsel's fees Rs 5000.' 62. In Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 ), the Hon'ble Apex Court held that it can never be forgotten that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. It was further held that Sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. The grant of maintenance has to be adequate so that she can live with dignity. She cannot be compelled to become a destitute or a beggar. 63. In view of the aforesaid consideration, this Court is of the considered view that; I. There was no valid talaq as per the Mahomedan Law by respondent No.1/husband upon petitioner/wife, in as much as; (i) The triple talaq, in one sentence Talaq-e-biddat is not valid and is declared as unconstitutional in the case of Shayara Bano (supra); (ii) When there can be no pronouncement of talaq, contrary to Mahomedan Law, orally, it can also not be in the form of writing. Talaq in written form, 'talaq name' be it a record of fact of an oral talaq or be the deed by which talaq is effected, must also be by observing the pre-conditions of talaq, i.e., after arbitration or reconciliation by their arbiters, one each from the families of husband and wife respectively and for reasons, as also with due observance of the mode of pronouncement of talaq i.e., not in one sentence saying 'talaq, talaq, talaq' but with duly following the requisite time gap amongst all the three pronouncements. (iii) The talaq in writing, i.e., talaqnama, was triple talaq written at the same time i.e., in one go, without due observance of the time gap between three pronouncements of talaq, a mode of talaq unrecognized; (iv) The pronouncement of talaq as per the Mahomedan law, with due observance of required time gap amongst three pronouncements has not been proved by any evidence, oral or documentary; (v) The pre-condition of arbitration for reconciliation by two arbiters, one each from family of the wife and the husband respectively, could not be established to have been followed; (vi) The pronouncement of talaq are required to be communicated to the wife; (vii) The registered letter sent to the wife was received back with endorsement of 'refusal'; The endorsement of refusal, on registered envelop, although raises primary presumption that the official acts have been regularly performed or/and the common course of business has been followed, but such presumption under Section 114 (e) and (f) of the Indian Evidence Act is only a rebuttable presumption; Such primary presumption was rebutted on the evidence of the petitioner as PW 1 and the witness PW 2, that neither there was service nor there was refusal to receive the registered post. The respondent not having adduced any other evidence, except the endorsement on the registered envelop, failed to prove the service of the registered envelop as also the talaqnama on the petitioner. There was no communication of the talaqnama on the petitioner. (viii) The presumption under Section 27 of the General Clauses Act applies where any Central Act or Regulation made after the commencement of the General Clauses Act authorises or requires any document to be served by post. Presumption under Section 27 of the General Clauses Act, therefore, could not be raised with respect to service of Talaqnama by post. (viii) The presumption under Section 27 of the General Clauses Act applies where any Central Act or Regulation made after the commencement of the General Clauses Act authorises or requires any document to be served by post. Presumption under Section 27 of the General Clauses Act, therefore, could not be raised with respect to service of Talaqnama by post. (ix) The Talaqnama did not effect talaq on the petitioner. She continued to be the wife of the 1st respondent, and was not the divorcee. II. Maintenance: i. The petitioner’s application for maintenance under Section 125 Cr.P.C was maintainable and was rightly allowed by the Magistrate. ii. The provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 are not attracted which apply to a divorcee muslim woman. iii. Even the divorced muslim woman is entitled for maintenance under Section 125 of Cr.P.C for her whole life so long as she does not remarry and her right to maintenance against the husband is not restricted to the period of Iddat only. 64. The points No. I & II as framed in para-13 (supra) stands answered in terms of paragraph No. I (i) to (viii) & II i to iii of para-63 (supra). 65. For all the aforesaid reasons the Revision is allowed. The judgment passed by the revisional court dated 07.07.2006 is set aside and the judgment of the trial Court dated 29.12.2004 is revived/restored. 66. Since long time has expired, it shall be open for the petitioner, if so desired, to take recourse to the appropriate proceedings open in law to her for enhancement of the maintenance amount, if so advised. 67. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed in consequence.