1 Crim.WP.No.2165/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2165 OF 2010 Shri Iqbal Aadam Tamboli ...Petitioner vs. Sou.Ramija Iqbal Tamboli & Anr. ...Respondents Mr.Manoj A. Patil for the Petitioner. Mrs.R.V. Newton, APP for the State  Respondent No. 2. CORAM : V.M. KANADE, J. DATED : AUGUST 5, 2010 P.C. :- 1 Heard Counsel for the petitioner. 2 By this petition which is filed under Article 227 of the Constitution of India and under Section 482 of the Cr.P.C., the petitioner is challenging order dated 28th June, 2010 passed by the Additional Sessions Judge, Kolhapur. By the said order, the learned Sessions Judge was pleased to set aside the order passed by the JMFC, Kagal rejecting 2 Crim.WP.No.2165/2010 the application filed by the respondent herein under Section 125 of the Cr.P.C. and was pleased to direct the petitioner to pay maintenance at the rate of Rs. 3000/- per month from the date of the application i.e. from 5th September, 2008. 3 In her application, she has stated that the petitioner used to harass her and she has further stated various instances in which the petitioner had caused physical and mental cruelty to her. She has further stated that on the birthday of her daughter  Aayesha, the petitioner had called another lady for the said birthday and when the respondent inquired about the said lady, he had abused her and had told her to go to her parents and therefore, on the next date, she was forced to go and stay with her parents and no attempt was made by the petitioner to call her back. She has further stated that the petitioner s Advocate had sent letter on 13th October, 1997 asking her to return to the matrimonial house and her Advocate also had 3 Crim.WP.No.2165/2010 replied that she was willing to stay with the petitioner. She has further stated that however, since the petitioner had no intention to take her back at the matrimonial house, another notice was sent by his Advocate stating therein that he intended to take Talak. Her Advocate, however, gave a reply and immediately, two days thereafter since the respondent wanted to stay with the petitioner- husband, she met the petitioner along with her cousin and his wife, however, the petitioner informed her that he had given her Talak and did not permit her to stay in the matrimonial house and therefore, she was forced to come back and stayed with her parents. 4 In the proceedings before the learned Magistrate, both the parties led evidence. The learned Magistrate, however, was pleased to reject the respondent s application for grant of maintenance. Against this order, she preferred a revision application in the Sessions Court. The 4 Crim.WP.No.2165/2010 Sessions Court after taking into consideration the evidence on record came to the conclusion that the petitioner-husband has not proved that he had given Talak to the respondent. The Court also came to the conclusion that the petitioner had treated the respondent with physical and mental cruelty and as such, she was justified in residing with her parents. 5 Counsel for the petitioner, firstly, urged that since the petitioner had given Talak, application under Section 125 was not maintainable. Secondly, it was submitted that no explanation was given by the respondent regarding the delay caused in filing the application for maintenance after 12 years and therefore, on that ground also, the respondent was not entitled to get maintenance. Thirdly, it was submitted that there was no willful neglect on the part of the petitioner-husband and that the respondent-wife on her own left the house and on that ground also, she was not entitled to get 5 Crim.WP.No.2165/2010 maintenance. In support of the said submission, he relied on the judgment of the Madhya Pradesh High Court in the case of Chandrakalabai vs. Bhagwansingh, reported in 2002 CRI.L.J. 3970. 6 It is not possible to accept the submission made by the learned Counsel for the petitioner. The Full Bench judgment of this Court in the case of Dagdu Chotu Pathan vs. Rahimbi Dagdu Pathan, reported in 2002(3) Maharashtra Law Journal 602 has held that mere pronouncement of Talak by the husband is not sufficient and in the proceedings under Section 125, the burden is on the husband to prove that he had given lawful Talak to the wife. In the present case, the Sessions Court after going through the evidence on record has come to the conclusion that the petitioner had not given lawful Talak. That being the position, the application under Section 125, therefore, is maintainable. Secondly, taking into consideration the averments made in the application and the material which was brought on 6 Crim.WP.No.2165/2010 record by the respondent wife, she has established that she had not deserted the petitioner-husband willingly but was forced to do so on account of the physical and mental cruelty by the husband. So far as third submission is concerned regarding the delay in filing the maintenance application, it is a well settled position in law that for filing an application under Section 125, period of limitation is not prescribed. In the application, she has stated the circumstances under which the said application was filed and therefore, merely because the application was filed after 12 years could not be the ground for rejecting the said application. There is no merit, therefore, in the submission made by the petitioner. 7 Petition, accordingly, is dismissed in limine. (V.M. KANADE, J.)