JUDGMENT/ORDER 1. Heard. 2. Rule. Rule made returnable forthwith. 3. None appears for the non-applicant though served. Ms. Shamsi Haider, learned Additional Public Prosecutor has, upon request made, graciously volunteered to assist the Court. 4. The challenge is to the judgment dtd. 13/2/2023 passed by the Family Court, Yavatmal in Petition No. E-234/2020. 5. The non-applicant - wife has filed petition under Sec. 125 of the Code of Criminal Procedure, 1973 (for short "the Code") against the applicant - husband. The Family Court has allowed the petition and directed the applicant to pay an amount of Rs.8,000.00 per month to the non-applicant as maintenance from the date of the order. 6. Learned counsel for the applicant submits that the Family Court ought to have framed the point as regards the plea of divorce put forth by the applicant in his reply. The Family Court referred to the pleadings in this regard but without formulating the point. 7. It appears that the applicant had sent a pre-talaq settlement notice to the non-applicant on 8/11/2019. The nonapplicant and her relatives have not responded positively. Thereafter on 25/11/2019, the applicant has pronounced first talaq in the presence of witnesses in terms of Muslim Personal Law. The pronouncement was intimated to the non-applicant through registered post acknowledgment due. The non-applicant has not responded to the first talaq within 40 days and, therefore, on 19/11/2020, the applicant has pronounced the third talaq. Thus, according to the applicant, procedure for a divorce has been duly complied with and, therefore, divorce is valid. This procedure is validated by the judgment of Hon'ble Supreme Court in the case of Shamim Ara vs. State of U.P. and anr. [ 2002(7) SCC 518 ]. 8. It is the case of the applicant that once the divorce is given, the Muslim wife will have to file proceedings under Sec. 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act of 1986'). Sec. 5 of the Act of 1986 reads thus : 5. Option to be governed by the provisions of Sec. 125 to 128 of Act 2 of 1974.- If, on the date of the first hearing of the application under sub-sec. Sec. 5 of the Act of 1986 reads thus : 5. Option to be governed by the provisions of Sec. 125 to 128 of Act 2 of 1974.- If, on the date of the first hearing of the application under sub-sec. (2) of Sec. 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sec. 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974) and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. Explanation.- For the purposes of this Sec. , "date of the first hearing of the application" means the date fixed in the summons for the attendance of the respondent to the application. 9. Sec. 3 of the Act of 1986 reads as under : < WXY>3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.-(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-sec. (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-sec. (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. (3) Where an application has been made under sub-sec. (2) by a divorced woman, the Magistrate may, if he is satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-sec. (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as it and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-sec. (1) the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under sub-sec. (1) the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under sub-sec. (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.</ WXY> 10. From the bare reading of Ss. 3 and 5, it is evident that the divorced Muslim woman has to make an application under Sec. 3(2) of the Act of 1986, then only parties may opt to be governed by the provisions of Ss. 125 to 128 of the Code. 11. In the context of above, the counsel for the applicant and the learned Additional Public Prosecutor submit that unless the issue/point as to whether the applicant has pronounced valid divorce, the consequential question as to whether the non-applicant ought to have filed application under Sec. 3(2) of the Act of 1986 and further to explore the option to the parties to be governed by Ss. 125 to 128 of the Code would arise. In other words, he submits that the divorced Muslim woman cannot file application under Sec. 125 of the Code without taking recourse to application under Sec. 3(2) of the Act of 1986. In that sense, if the issue/point is so framed and if it is held that the applicant has pronounced valid talaq, the non-applicant will have to approach the Court under Sec. 3(2) of the Act of 1986 and thereafter the question whether the parties would opt to be governed by Ss. 125 to 128 of the Code. 12. In that sense, if the issue/point is so framed and if it is held that the applicant has pronounced valid talaq, the non-applicant will have to approach the Court under Sec. 3(2) of the Act of 1986 and thereafter the question whether the parties would opt to be governed by Ss. 125 to 128 of the Code. 12. I find substance in the submissions made by the applicant in as much as unless the issue/point is framed and answered as to the validity of the talaq, the Court could not have proceeded further on the point whether the parties will be governed by Ss. 125 to 128 of the Code. Learned Family Court ought to have framed the aforesaid point. Having not done so, the maintainability of the application under Sec. 125 of the Code itself will be at stake. Therefore, the order impugned is not sustainable in the eyes of law. 13. Before I part with the order, I appreciate the efforts taken by learned Additional Public Prosecutor Ms. Shamsi Haider in rendering her assistance while dealing with contentious issues involved. 14. In the result, the following order. < WXY>ORDER (i) The application is allowed. (ii) The judgment and order dtd. 13/2/2023 passed by the Family Court, Yavatmal in Petition No. E-234/2020 is quashed and set aside. (iii) The matter is remanded back to the Family Court, Yavatmal by restoring Petition No. E-234/2020 to its file. The Family Court shall formulate the issue/point as regards the validity of divorce/talaq and thereafter will deal with consequential procedure in accordance with the law. (iv) The applicant shall appear before the Family Court, Yavatmal on 16/10/2023. (v) The Family Court shall issue notice to the non-applicant - wife to secure her presence and to proceed further in accordance with law. (vi) The application is disposed of in above terms.</ WXY>