The factum of Talaq must be proved if challenged by the wife, and the Talaq must be pronounced and proved to dissolve the marriage. The wife cannot be denied the benefit of Section 125 Cr.P.C. based solely on the husband's statement.

Ashok Shrivastava, J.: -

List has been revised. None is present either from the side of revisionist or from the side of opposite party no. 2. Learned A.G.A. is present.

2. An application under Section 125 Cr.P.C. was moved before the learned Judicial Magistrate, Hapur (Ghaziabad) which was registered there as Case No. 192 of 2000. It was moved by the revisionist for maintenance against her husband for herself and her minor son. During the pendency of the petition, opposite party no. 2, Fayyaz, moved an application before the learned Magistrate on 17.8.2002 informing the court that he had already divorced the petitioner and had also informed his decision to her through registered post as well as by sending a telegram to her. In the said application, the opposite party no. 2 had requested the court that the proceeding should be truncated and the petition under Section 125 Cr.P.C. should be dismissed. The said application was contested by the revisionist. She had specifically said in her objection that she has not been divorced by opposite party no. 2 and, therefore, the petition under Section 125 Cr.P.C. cannot be dismissed at that stage.

3. The learned Magistrate heard the parties and on 7.9.2002 he passed an order in which he held that the factum of divorce was disputed as the husband was alleging that he had divorced his wife whereas the wife was denying this fact and she was also denying that she had received any such communication from her husband. In his order dated 7.9.2002, the learned Magistrate kept that application pending as he was of the opinion that the said application should be disposed of alongwith the main peittion. Feeling aggrieved by the order dated 7.9.2002, the opposite party no. 2 preferred a revision before the learned Addl. Sessions Judge, Hapur (Ghaziabad). After hearing both the parties, the learned Addl. Sessions Judge allowed the revision and set aside the order passed by the learned Magistrate and held that the petition under Section 125 Cr.P.C. stood dismissed as far as it related to the revisionist but it was to continue as far as her son was concerned. Feeling aggrieved by this judgment and order dated 22.8.2003 passed in Crl. Revision No. 460 of 2002, the present revision has been filed.

4. Heard the learned A.G.A. and perused the records.

5. Learned A.G.A. has opposed the revision and has said that the revisional order passed by the learned Addl. Sessions Judge is legal and sustainable in the eyes of law.

6. From the perusal of the order passed by the learned Addl. Sessions Judge it is evident that opposite party no. 2 had taken the plea of divorce in his written statement also filed by him in respect of petition under Section 125 Cr.P.C. It is also evident that the plea was there that he had informed the revisionist by means of a telegram stating therein that he had divorced her. Now the relevant fact, as emerged from the records, is that the opposite party no. 2 had taken the plea of divorce in his written statement and thereafter he moved again an application on 17.8.2002 before the learned Magistrate, reference whereof has been given above. Since the plea of divorce has already been taken in the written statement, the application dated 17.8.2002 was totally extraneous and it was not required to be moved at all but it was moved and entertained not at the level of the Magistrate but also at the level of the learned Addl. Sessions Judge.

7. In (2002) 7 Supreme Court Cases 518, Shamim Ara Vs. State of U.P. and another, the Supreme Court has said that plea of Talaq taken by husband in his written statement should be proved, if the same is challenged by the wife. If the particulars of the alleged Talaq are not pleaded, nor the circumstances under which and the persons, if any, in whose presence Talaq was pronounced have been stated, such deficiency cannot be rectified. It is the duty of the husband that if the factum of Talaq is disputed by the wife, the same is to be proved to the satisfaction of the

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