IMPORTANT POINT
The validity of a talaq must be determined before a divorced Muslim woman can claim maintenance under Sec. 125 of the Code of Criminal Procedure, necessitating an application under Sec. 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

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. (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. (1) have not been delivered to a divorced woman on her