This is a reference made by the Additional Sessions Judge, Jammu, in the proceedings arising out of a revision petition filed by the applicant against an order of the Tehsildar Magistrate First Class, Kishtwar, by which the applicant has been ordered to pay Rs. 30/- per month as maintenance to the non-applicant under S. 488, Cr. P. C.

(2) We have heard counsel for the parties. It appears that on 1st Maghar, 2009 Mst. Begha, non-applicant put in an application under S. 488, Cr.P. C. against Amad Giri, the applicant, alleging that she was his wife and had borne him ten children and that she had been driven out of his home by the applicant, and praying that, as he had refused to maintain her, she may be granted an allowance of Rs. 30/- per month from him for her maintenance. In paragraph 5 of her petition, she admitted that she had heard that her husband had divorced her. She, however, added that even if she had been divorced by her husband she could claim maintenance from him, as she was in old age and could neither remarry nor earn her own living. The applicant in his objections stated that the proceedings under S. 488, Cr. P. C. could not proceed as he had divorced his wife. In support of his objections, he produced in Court an unopened registered cover, Ex. D-2, on opening which a Talaknama, Ex. D-l, executed on 12th Katik 2009, written by petition writer, Kunj Lal, and attested by two witnesses, Ahmad Sheikh and Rasul Giri, was recovered.

It appeared that this Talaknama which is written on a stamp paper had been sent by the applicant to the non-applicant under the registered cover Ex. D-2, which bears an endorsement of the postman, Ram Saran and of Aziz Giri, who has been produced by the applicant as has witness, to the effect that Mst. Begha, non-applicant, had refuses to take delivery of this communication addressee to her. The scribe of the document, Ex. D-l, Kunj Lal and one of the attesting witnesses, Rasul Giri were produced by the applicant before the Tehsildar Magistrate and they prove the contents of the Talaknama. Aziz Giri has stated that he was present in the house of the non-applicant when the postman brought the registered cover to her of which she refused to take delivery. From the fact stated above, it is obvious that Talaknama, Ex. D-l was executed on 12th Katik 2009 and Mst. Begha non-applicant, refused to take delivery of it on 19th Katik 2009 and that she had not only refused to take delivery of this document but that she had also heard that she had been divorced by her husband before 1st Maghar 2009 the date on which she presented her application under S. 488, Cr. P. C to the Tehsildar Magistrate.

Despite these clear facts proved by Amad Giri applicant, before the Tehsildar Magistrate and inspite of the fact that his counsel drew the attention of the Magistrate to the provisions of Mohammadan Law as contained in the text books by Mulla and Ameer Ali, the Tehsildar Magistrate after quoting a large number of verses (AYATS) from the holy Quran and making references to certain Hadises

(sayings of the prophet) and other books of theology came to the conclusion that this Talaknama was absolutely invalid and ineffectual and, therefore the relationship of husband and wife continued to exist between the parties. In the alternative he found that even if the divorce be held to be valid the applicant was bound to maintain the non-applicant as she was old and could neither remarry no earn her living. He, therefore, granted her monthly maintenance allowance of Rs. 30/- and made no order with regard to the maintenance for the minor children of the couple as this had not been claimed in the application filed by the non applicant.

The learned Additional Sessions Judge Jammu, after referring to certain paragraphs of Mullas Mohammadan Law held that the divorce in this case was good in law and had become irrevocable. He has, therefore, recommended that the order of the Tehsildar Magistrate granting a maintenan