A Muslim husband cannot avoid his liability to maintain his wife and child by claiming 'khula' unless he proves the factum of 'khula' in accordance with the Mohammedan Law.

P. K. TRIPATHY, J.

( 1 )

( 2 ) THIS revision is directed against the order dated 7-5-1997 in Criminal Proceeding No. 458 of 1991 of the Court of Judge, Family Court, Cuttack under Section 125 of the Code of Criminal Procedure, 1973 (in short 'the Code' ).

( 3 ) INTER se relationship is not disputed that petitioner is the husband or opp. party No. 1 and father of opp. party No. 2. Admittedly, parties are Muslim by faith and they are governed by their personal law. Alleging ill-treatment and cruelty against the petitioner and lack of funds to maintain themselves, the opposite parties filed petition u/s. 125 of the Code claiming monthly maintenance of Rs. 300/- and Rs. 200/- respectively for opp. parties 1 and 2. Petitioner denied to the allegations of ill-treatment and cruelty etc. He advanced the case that opposite party No. 1 was never interested to stay in his house and on 3-1-1988, she gave 'khula' and left the house of the petitioner. He thus stated that opp. party No. 1 is not entitled to maintenance and that he is willing to maintain opposite party No. 2.

( 4 ) TO substantiate their case the opposite parties examined three witnesses including opposite party No. 1 as P. W. No. 1 and relied upon Ext. 1, the Faisalanama. Petitioner examined three witnesses including himself as O. P. W. No. 1 and relied upon series of documents marked as Exts. A to L/3.

( 5 ) LEARNED Judge, Family Court formulated following four points in order to adjudicate the matter. (I) If the petitioner has been tortured, ill-treated, neglected and refused maintenance by the O. P. who allegedly drove her out of his house on 16-8-87. (II) If the petitioner No. 1 has been divorced by the O. P. (III) Is the petitioner has given 'khula' to the O. P. and thereby deserted him; and (IV) If the petitioner is entitled to any maintenance.

( 6 ) ON assessment of evidence in record, learned Judge, Family Court recorded the findings that petitioner failed to prove the factum of divorce in the manner it is pleaded in the Written statement and, therefore, relationship of wife and husband still subsists between the opposite party No. 1 and the petitioner and that opposite parties having been ill-treated, neglected and refused to be maintained, they are entitled to maintenance. Accordingly, he allowed monthly maintenance @ Rs. 300/- to the opposite party No. 1 and Rs. 250/- to the opp. party No. 2 from the month of March, 1991 (i. e. the month of filing of the Criminal Proceeding ).

( 7 ) THE first point which requires consideration is relating to the plea of divorce and whether the same has been properly decided by the Judge, Family Court. So far as that plea is concerned, relevant portion of the written statement is quoted herewith for proper reference and better appreciation. "that the true fact of the case is that after the marriage she did not like to stay at the house of this opp. party. She also assaulted this opp. party for several times and misbehaved the family members of this opp. party. To most of the time she stayed at her father's house. This petitioner has gone several times to bring her and advise her not to misbehave this opp. party and his family members. But all the advise and efforts of the petitioner went in vain. Three meetings were held on 23-6-84, 1-10-87 and 3-1-88 by Moulana Amir, Shariat Orissa, Akber Md. Ismail, Kazihat and in the said meeting it is found the petitioner No. 1 is at fault and an agreement was executed for not misbehaving her husband and family members, still then she did not change her behaviour and continued her torture to this Opp. Party and family members. Lastly, she left this Opp. Party's house by giving Khula on 03-01-88. "it appears from the evidence of Opp. Party No. 1 that as P. W. 1 she denied to the assertion made by the Petitioner that she gave 'khula' on 3-1-1988. In view of such denial undoubtedly the burden was with the petitioner to prove the factum of 'khula' form of divorce by clear and cogent evidence.