A Talaknama executed in writing is effective from the date of its execution and snaps the marriage tie between the petitioner and the opposite party from that date.

1. This petition is by the husband. The opposite party filed an application under Section 488 of the Code of Criminal Procedure on 22-12-69 claiming maintenance from the petitioner her husband at the rate of Rs. 80/- per month. She stated that she lived in her husband's house for sometime, but was driven out by him after assaulting her mercilessly and that he is not maintaining her from that date though he has sufficient means.

2. The husband filed show-cause on 20-6-1970 stating that he divorced the petitioner by executing a deed of Talak on the 5th of Jaistha 1376 B.S. and that she is not entitled to claim any maintenance from him. The learned Magistrate by his order dated 13-1-1973 allowed the wife's petition directing payment of Rs. 50/- per month as maintenance from the date of filing of her application i.e., 22-12-1969. He has rejected the plea of the husband that the petitioner was divorced by him. Against that order the husband moved the Sessions Judge in an application under Sections 435 and 438 of the Code. The learned Sessions Judge by his order dated 26-6-1973 has rejected that petition refusing to make a reference to this Court. The husband has moved this court filing this application under Section 439 of the Code challenging the legality of the learned Magistrate's order.

3. Under Section 488 of the Code of Criminal Procedure a wife may claim maintenance from a husband. Existence of relationship of husband and wife between the applicant and the opposite party is necessary for filing an application under Section 488. The husband submits that he divorced the petitioner executing a Talaknama on the 5th Jaistha 1376 B.S. and that he sent intimation about the Talaknama by sending a letter in a cover, Ext. 1 bearing post mark 24-5-1959'. The instant application was filed on 22-12-1969 by the wife. If it is held on the Talaknama that the marriage tie between the petitioner and the opposite party came to an end on and from the date of execution of the Talaknama, Ext. A, the present application will not be maintainable at the instance of the wife on the ground that she ceased to be the wife of the petitioner from before 22-12-1969. Paragraph 313 of Mulla's Principles of Mahomedan Law, 16th Edition is that in the absence of words showing different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Ext. A is the Talaknama. It is addressed to the wife opposite party. It recites that the husband is divorcing the wife in presence of village Salis in an irrevocable manner. It no doubt recites that the wife is present at the time of giving of the Talak. But the evidence is that she was not present at that time. The document, however, shows the clear intention of making divorce from that date as Talah-I-bain. In that view of the matter, the Talak in this case became effective from the date of its execution and snapped the marriage tie between the petitioner and the opposite party from that date. The application by the petitioner on 22-12-69 is therefore, not maintainable. On that ground alone the order of the learned Magistrate allowing maintenance to her will be set aside.

4. Mrs. Moitra, appearing for the petitioner, however, submits that the Talaknama having been executed in the absence of the wife, she is entitled to maintenance upto the period of her acquiring knowledge of the Talak by communication of that to her. The Talak pronounced in the absence of the wife takes effect for the purpose of her getting alimony from the date of communication of that to her. The Talak takes effect though not communicated to her; but for the purpose of dower and alimony it is necessary that the Talak should come to her knowledge or she is informed of it. In this case the Talak which the husband gave in the absence of the wife came to her knowledge when the husband filed his show-case in court on 20-6-1990 and on that date, it appears from the order-sheet the