S. Talapatra, J.

To question the legality of the judgment and order dated 5.8.2009 passed by the Judge, Family Court, Kailashahar, North Tripura in Criminal Misc. Case No. 35/2009, this petition under section 397/401 of the Cr.PC has been preferred.

2. By the impugned judgment and order, the maintenance under section 125 of the Cr.PC as sought from the respondent has been refused holding that the respondent has divorced the petitioner by pronouncing Talak and after divorce, the petitioner is not entitled to get any maintenance, as per provisions of section 125 of the Cr.PC. But, her minor daughter, namely Must. Nazma Begum, is entitled to get maintenance from her father, the respondent in as much as the said minor daughter has been residing with the petitioner.

3. The challenge is founded and focused on : (1) whether there is any legal divorce as per the Islamic tenets and (2) whether the divorced woman is absolutely dis-entitled from maintenance under section 125 of the Cr.PC in as much as the Muslim Women (Protection of Rights on Divorce) Act, 1985 has come into force.

4. For appreciation of the challenge, it is required that the essential facts are introduced at the threshold.

The petitioner married the respondent on 2.10.1999 as per the Shariat laws by executing a Kabil nama. Thereafter, both the petitioner and the respondent lived their conjugal life peacefully for about six years and in the wedlock, a female child was born. On 23.1.2006, the respondent had assaulted the petitioner and she was forced to take shelter in her father's house at Irani. Since then, she has been residing in the shelter of her father with her minor child. Even though the respondent has got sufficient means, he has refused to maintain the petitioner and the said minor child. According to the petitioner, the respondent earns not less than Rs. 15,000 per month whereas, the petitioner has no means at all. When the petitioner and her minor daughter had rolled to the brink of destitution, the petitioner approached the family court for saving her from vagrancy.

5. The allegations of the petitioner were seriously resisted by the respondent. In response, he alleged that the petitioner left her matrimonial home on 9.5.2006 with one Askar Ali for leading adulterous life. When the petitioner left the matrimonial home, the respondent had lodged a complaint to the Irani Outpost. He has her stated in the objection that on 10.5.2006 the respondent pronounced Talak to the petitioner as per Islamic law for dissolving the marriage. It has been stated in the written objection that there was some settlement regarding payment by the parties. As such, the respondent contended vehemently that the petitioner has become dis-entitled to get any maintenance in view of the provision of section 125(4) of the Cr.PC.

6. In the course of adjudication, the Judge, Family Court, Kailashahar allowed the parties to lead their evidence for substantiation.

7. The petitioner (PW 1) has stated in tune with what she had stated in the petition under section 125 of the Cr.PC.

As PW 2, Md. Siddak Ali, the father of the petitioner has stated corroborating the allegations of the petitioner. He has categorically stated that the petitioner was seriously assaulted by the respondent and had to take shelter in his house with her minor child. The respondent did not pay any maintenance. PW 2 did not state about 'Talak'.

Md. Anhar Miah (PW 3) has stated that he had seen the petitioner residing in the house of her father for last two and half years. He heard from PW 2 that Abdul Kadir, the respondent herein, assaulted his daughter Alima and drove out her from the matrimonial borne. PW 3 has stated that respondent is a tailor and running his business from Babur-Bazar.

PW 4 a neighbour, namely Md. Abdul Malik, has stated that the petitioner and the respondent were living as the husband and wife and in the wedlock, a female child was born. He came to learn from PW 2 that her daughter was asked to bring a h