Honble LAHOTI, J.–Shamim Ara, the appellant and Abrar Ahmed, the respondent No.2 were married some time in 1968 according to Muslim Shariyat Law. Four sons were born out of the wedlock. On 12.4.1979, the appellant, on behalf of herself and for her two minor children, filed an application under Section 125 Cr.P.C. complaining of desertion and cruelty on the part of respondent No.2 with her. By order dated 3 4.1993 the learned Presiding Judge of the Family Court at Allahabad refused to grant any maintenance to the appellant on the ground that she was already divorced by the respondent and hence not entitled to any maintenance, However, maintenance at the rate of Rs.150/- per month was allowed for one son of the appellant for the period during which he remained a minor; the other one having become major during the pendency of the proceedings.

(2). The respondent No.2 in his reply (written statement) dated 5.12.1990, to the application under Section 125 Cr.P.C., denied all the averments made in the application. One of the pleas taken by way of additional pleas is that he had divorced the appellant on 11.7.1987 and since then the parties had ceased to be spouses. He also claimed protection behind the Muslim Women (Protection, of Rights on Divorce) Act, 1986 and submitted that the respondent No.2 had purchased a house and delivered the same to the appellant in lieu of Mehar (Dower), and, therefore, the appellant was not entitled to any maintenance. No particulars of divorce were pleaded excepting making a bald statement as already stated hereinabove.

(3). The appellant emphatically denied having been divorced at any time. The respondent No. 2, when he appeared in the witness- box, stated having divorced the appellant on 11.7.1987 at 11 a.m. in the presence of Mehboob and other 4-5 persons of the neighbourhood. He further stated that since 1988 he had not paid anything either to the appellant or to any of the four sons for their maintenance. The divorce said to have been given by him to the appellant was a triple talaq though such a fact was not stated in the written statement.

(4). The Family Court in its order dated 3.4.1993 dealt with and upheld a strange story of divorce totally beyond the case set up by the respondent No.2. The learned Presiding Judge referred to some affidavit dated 31.8.1988 said to have been filed by the respondent No.2 in some civil suit details whereof are not available from the record of the present case but certainly to which litigation the appellant was not a party, In that affidavit it was stated by the respondent No. 2 that he had divorced the appellant 15 months before. The learned Judge held that from such affidavit the plea of the respondent No. 2 found corroboration of his having divorced the appellant. The learned Judge concluded that the appellant was not entitled to any maintenance in view of her having been divorced.

(5). The appellant preferred a revision before the High Court. The High Court held that the divorce which is alleged to have been given by the respondent no.2 to the appellant was not given in the presence of the appellant and it is not the case of the respondent that the same was communicated to her But the communication would stand completed on 5. 12.1990 with the filing of the written statement by the respondent no. 2 in the present case. Therefore, the High Court concluded that the appellant was entitled to claim maintenance from 1.1.1988 to 5.12.1990 (the later date being the one on which reply to application uSec.125 Cr.P.C. was filed by the respondent No.2 in the Court) whereafter her entitlement to have maintenance from respondent No.2 shall case. The figure of maintenance was appointed by the High Court at Rs. 200/-.

(6). The appellant has filed this appeal by special leave. The singular issue arising for decision is whether the appellant can be said to have been divorced and the said divorce communicated to the appellant so as to become effective from 5.12.1990, the date of fi

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