The main legal point established in the judgment is the husband's duty to prove divorce in accordance with Muslim law to affect the wife's entitlement to maintenance under Section 125 of the Cr.PC.

S.L. Kochar, J.

1. The applicant has filed this revision petition against the order dated 8-5-2001 passed by IIIrd AST, Dewas in Criminal Revision No. 98/2000 wherein learned Sessions Judge set aside the order dated 25-7-2000 passed in Misc. Criminal Case No. 75/97 by Judicial Magistrate, First Class, Bagli, District Dewas thereby granting maintenance @ Rs. 2000/- per month to the applicant.

2. The facts of the case lie in a narrow compass, that the respondent/ wife, on 22-12-1997, filed an application under Section 125 of the Cr.PC for grant of maintenance before the Judicial Magistrate, First Class, Bagli, District Dewas. According to her, she was legally wedded wife and gave birth to 2 sons named Sabbir and Shakir after marriage. The non-applicant/husband was ill-treating her for demand of dowry. He turned his wife out from the house after beating and ill-treating. As he wanted to marry with other woman, after turning his wife out of the house, he got married with another woman. After desertation, he did not make any provision for her maintenance. Applicant/wife has no source of income to maintain herself whereas non-applicant/husband was earning 3000/- rupees per month as he is working as a driver. Apart from this, he is running a tent house from which he is earning 5000/- rupees per month. He is also doing the business of cotton bed and quilt and also having earnings from an agriculture. She demanded only 2000/- rupees per month as maintenance.

3. Non-applicant/husband, after his appearance submitted written reply dated 2-9-98 and averred that the applicant/wife was not willing to live with him and was oftenly picking quarrel. Therefore, in accordance with Muslim Law, oral divorce was given to her in front of witnesses, on August, 1997. Thereafter, she was turned out from the house of the husband and she went in her parental house and from the date of divorce he has no relations with her. He further, submitted that since the applicant was divorced wife, she has no right to file an application under Section 125 of the Cr.PC, for grant of maintenance. The facts and grounds mentioned by the applicant/wife in the application under Section 125, Cr.PC for grant of maintenance were emphatically denied by the non-applicant/husband in the reply. In the Trial Court, the applicant examined herself, her witness Ramchandra (P.W. 2), Moolchand (P.W. 3) and Sakir (P.W. 4) son of the applicant and non-applicant. She got proved notice dated 2-12-1997 and an acknowledgment about service of notice served upon the non-applicant, Exhs. P-1 and P-2.

4. The factum of service of notice Ex. P-1 and its acknowledgment, has been accepted and admitted by the non-applicant, in his reply in para 8. The non-applicant has not examined himself or any other witness in the Trial Court in his favour. His main contention appears to be before the Trial Court was that he had given oral divorce to his wife according to Muslim Law before the witnesses. Therefore, the application under Section 125, Cr.PC filed by the wife, was not maintainable. During the course of proceedings, non applicant/ husband has also submitted an application on 1-5-1998 before the Trial Court stating that he had already given oral divorce to his wife because she was not properly behaving with rim and has also given in writing that he had divorced her as under :--

;g fd izkfFkZuh esjh ifRu gSA ge eqfLye lekt ds yksx gSaA eSaus viuh ifRu dks esjs lkFk mldk O;ogkj Bhd ugha gksus ls igys ekSf[kd :i ls rykd ns pqdk gwa] vkSj vkt fyf[kr esa Jheku ds le{k fy[k nsrk gwa fd eSa mldks rykd nsrk gwaA vc esjk blls ifRu dk lEcU/k ugha cpk gSA

In Paragraph 8 of the cross-examination of the applicant, she has denied the factum of divorce as stated by the non-applicant in the reply as well as in the application. Moolchand (P.W. 3) has also expressed his ignorance about the divorce between the applicant and non-applicant in Paragraph 4. Sakir (P.W. 4) son of the applicant and non-applicant has also deni