JUDGMENT

N.G. Das, J. - This petition under section 397 read with Section 401 of Cr. P.C. is directed against the order of learned Chief Judicial Magistrate, Karimganj dated 1.8.87 passed in M.R. Case No. 75/87 directing the petitioner herein to pay the Opposite Party maintenance allowance at the rate of Rs. 100/- per mensem.

2. The brief facts of the case an that the petitioner married the Opposite Party on 29.10.80 A.D. according to Islamic rites and out of their wed-lock two children were born. Thereafter the petitioner married the wife of his younger de ceased brother and soon-after this marriage, it was alleged, the petitioner started torturing the Opposite Party and the magnitude of the torture went to such an extent that the Opposite Party along with her children had to take shelter in the house of her father. As the petitioner did not take care of the Opposite Party the Opposite Party at last filed a petition in the court of learned Chief Judicial Magistrate for maintenance.

3. The petitioner resisted this petition by filing a written statement wherein he contended, inter alia, that he divorced the Opposite Party and that he never tortured her. So, according to Mahemmedan Law the Opposite Party is not entitled to get any maintenance.

4. Both the parties adduced evidence in the court of learned, Chief Judicial Magistrate, who after elaborate discussion of the evidence arrived at the conclusion that the fact of divorce was not proved. So, considering the income of the petitioner the learned Chief Judicial Magistrate granted maintenance allowance to the Opposite party and her two children at the rate of Rs. 100.00 per head per mensem.

5. So; the principal question which calls for consideration in this case is whether the contention of the petitioner that he divorced his wife i.e. Opposite party as per Mahommedan Law is acceptable or not

6. Mr. H.R.A. Choudhury, the learned counsel appearing for the petitioner has submitted that the impugned order deserves to be set aside so far as the Opposite Party is concerned since learned Chief Judicial Magistrate has erroneously taken into consideration some evidence which has no relevance to the case. According to Mr. Choudhury this kind of evidence is not at all permissible to be taken into consideration in view of the provisions laid down under section 310 of the Mahommedan Law which reads:

"Talak may be oral or in writing - A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama (a).

(1) Oral Talak - No particular form of words is prescribed for effecting a talak. If the words are express (saheeh) or well under-stood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her (t). In a Calcutta case the husband merely pronounced the words "talak" before a family council and this was held to be invalid as the wife was not named (g). This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife's absence, as the wife was named (h). The Madras High Court has also held that the words should refer to the wife (i) The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is necessary that it should come to her knowledge (j); and her alimony may continue till she is informed of the divorce (k). As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Art. 104 for the wife suit for deferred dower ran from the time when the divorce comes toper notice (1) under the Act of 1908

Referring to this provision 'Mr. Choudhury has argued that no formal proof is necessary for dissolution of marriage under the Mahommedan law. It is sufficient if husband communicated his decision to his wife that he has div