A Muslim woman who is a talaqui wife is not entitled to maintenance under section 125 Cr.PC. However, she may be entitled to maintenance under sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

P.S. Datta, J.

1. The order dated 12.12.08 passed by the learned ACJM, Uluberia in Misc. Case No 109/08 is under challenge.

2. The opposite party herein filed an application under section 125 Cr.PC before the learned Magistrate, being Misc. Case No. 109/08, praying for maintenance against the present petitioner. The opposite party filed a written objection against the said petitioner challenging the narrative of the wife. At the threshold of hearing, the petitioner prayed before the learned Magistrate for rejection of the petition on the ground that the opposite party is a talaqui wife and the petition accordingly under section 125 Cr. PC was not maintainable. Learned Magistrate observed that in the four corners of the written objection no plea was taken therein that the petitioner before the learned Magistrate was a talaqui wife and accordingly subsequent petition praying for rejection of the application under section 125 Cr.PC questioning maintainability of the proceeding does not deserve acceptance. Learned Magistrate observed that though under the Muslim Law a divorced Muslim woman is not entitled to maintenance under section 125 Cr.PC the question as to whether the petitioner before him was or was not a talaqui wife has to be decided through evidence both oral and documentary as may be tendered only at the trial not before trial.

3. Against the order dated 12.12.2008 the revisional application has been taken out by the petitioner on the ground that it was incumbent upon the learned Magistrate to hold that the opposite party was divorced on 19th November 2007 in presence of her mother and brother's wife by the present petitioner and as such in view of the provision of the Muslim Women (Protection of Rights on Divorce) Act, 1986 the proceeding tinder section 125 Cr. PC was not maintainable and the learned Magistrate committed error in continuing with the proceeding. Learned Advocate appearing for the petitioner submitted that the question of maintainability of the proceeding under section 125 Cr. PC should be decided first before proceeding with the proceeding under section 125 Cr.PC. The provisions of the Muslim Law have been read before the Court and in support of the submission the provision of the Act 1986 have been placed.

4. Mr. Somopriyo Chowdhuri, learned Advocate for the opposite party supported the magisterial order and submitted that it is ludicrous to hold that without trial the learned Magistrate should be asked to accept the contention of the petitioner that the opposite party is a talaqui wife.

5. Having heard the learned Advocates for the parties, I am unable to subscribe to the submission of learned Counsel for the petitioner. Learned Magistrate is to conduct the trial on the basis of the pleadings. In the petition under section 125 Cr. PC the petitioner before the learned Magistrate did not claim herself to be a talaqui wife. In the lengthy written objection there was no whisper that the present petitioner before this Court pronounced talaq against her. More surprisingly the petitioner herein filed an additional written statement which is quite lengthy one and in that additional written statement also there was no averment that the wife was a talaqui wife. It was the contentions of the petitioner herein that the wife left the matrimonial home without just cause and she has some extra-marital affairs with somebody else. Thus we find that neither in the lengthy written objection nor in the additional written objection any plea was taken out that the petitioner herein pronounced talaq against the opposite party. It is only by a separate petition subsequent to the filing of the written objection and additional written objection, that the petitioner took out a case that the opposite party is a talaqui wife. Having regard to the catena of decisions of this Court as also of the Supreme Court the law is well-settled now the mere plea of the husband that he has pronounced against the wife is not conclusive. Whe