ORDER

This is a criminal revision filed by the applicant/wife assailing the order dated 28.11.2002 passed by the Sessions Judge, Bhopal in Criminal Revision No. 162 of 2002. 2. It is contended by the counsel for the applicant that marriage of the applicant was solemnized with the respondent somewhere in the year 1990.

After marriage, the applicant/wife was subjected to cruelty. On account of matrimonial disputes, the applicant/wife had to approach the Judicial Magistrate First Class, Bhopal by filing an application under Section 125 of Cr.P.C. The said application was decided by the Judicial Magistrate First Class, Bhopal vide order dated 1.4.2002 passed in in M.J.C. No. 1 of 2000 directing the respondent/husband to pay maintenance to the tune of Rs.1000/- per month to the applicant/wife. The order dated 1.4.2002 passed by the trial Court was assailed by the respondent/husband by filing a revision before the Sessions Judge, Bhopal. The Sessions Judge, Bhopal vide order dated 28.11.2002 allowed the revision filed by the respondent/husband and set aside the order dated 1.4.2002 passed by the Judicial Magistrate First Class, Bhopal and concluded that as the applicant/wife was divorced by the respondent/husband in past, the application under Section 125 of Cr.P.C. was not maintainable, on the contrary, an application under Section 3/4 of the Muslim Women (Protection of Right on Divorce) Act, 1986 (hereinafter referred to as the Act of 1986), ought to have been filed.

3. It is contended by the counsel for the applicant/wife that the order impugned passed by the revisional Court suffers with the infirmity and perversity, inasmuch as, in Paragraph 8 of its order, the revisional Court has concluded that as the factum of divorce was brought to the notice of the applicant/wife in the written statement, which was filed by the respondent/husband, the application filed by the applicant/wife under Section 125 of Cr.P.C., according to the revisional Court, was not maintainable. It is further contended by the counsel that identical controversy has been taken note by the Apex Court in the case of Shamim Ara Vs. State of U.P. and another - 2003 Cr.L.R. [SC] 24 whereby the Apex Court has considered the aspect that the a divorce pronounced in past cannot itself be treated as effective divorce (talaq) on the date of delivery of the copy of the written statement to the wife. It is further contended that the factum of divorce is required to be proved by adducing evidence and pronouncement of talaq cannot be based merely on account of plea in the written statement. Thus, it is submitted that the impugned order passed by the revisional Court be set aside.

4. Heard the counsel for the applicant and perused the material available on record.

5. A perusal of the record, reflects that the order dated 1.4.2002 passed by the Judicial Magistrate First Class, Bhopal of grant of maintenance to the applicant to the tune of Rs.1000/- per month was assailed by the respondent/husband by filing a revision before the revisional Court and the revisional Court vide impugned order dated 28.11.2022 concluded that as there was a divorce in past, which was brought to the knowledge of the applicant/wife by filing written statement, therefore, by virtue of the provision of Section 3 of the Act of 1986, the applicant/wife was not entitled for any maintenance under Section 125 of Cr.P.C. On the contrary, the applicant ought to have taken recourse to the remedy available under Section 3/4 of the Act of

1986. The revisional Court while arriving at the aforesaid conclusion observed in Para 8 as under:-

"8. The present applicant Abdul Saleem has given categorically statement before the trial court that he had divorced the non-applicant, the divorce did as per Ex.D/1 which has been proved by the statement of non-applicant. As regards the intimation of divorce it may be true that previously the non- applicant has got no intimation about the divorce but after filing the written