1 W 1854.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.1854 OF 2010 Soheb Abdul Reheman Khatri ..Petitioner versus Afrin Soheb Khatri & Anr. ..Respondents Mr.V.S.Mali for the Petitioner. Mr.S.A.Shaikh APP for State. CORAM : V.M.KANADE, J. DATED : JULY 26, 2010. P.C. : Heard learned counsel for the petitioner and learned APP for the State. 2. The grievance of the petitioner is that the revision application filed by the petitioner before the Sessions Court was dismissed on the ground that the delay caused of one year and 90 days in filing the revision application has not been explained and on that ground alone the said revision application was dismissed. The brief facts are as under: The respondent- wife filed an application in the court of Judicial Magistrate, First Class, Panvel under section 125 of the Code of Criminal Procedure seeking maintenance. The petitioner filed his written statement on 6.7.2009 and raised objection regarding maintainability of the maintenance petition. It 2 W 1854.10 was urged that the petitioner has given divorce to the respondent-wife and, therefore, the said application under section 125 of CrPC was not maintainable. Learned counsel for the petitioner has relied on the judgment of the learned Single Judge of this court in Shaikh Mohamed s/o Shaikh Vajir Patil Vs. Naseembegum w/o SK.Mohamed and Anr. and also the judgment of another learned Single Judge in the case of Syed Younus s/o Dadamiya Vs. Jabeem w/o Syed Younus reported in 2006 (5) Maharashtra Law Journal Page 339 and 2009 (2) Maharashtra Law Journal Page 402 respectively wherein it has been held that an application filed by the Muslim divorced women under section 125 of the Code of Crimical Procedure without following the due procedure as contemplated under section 5 of the Muslim Women Act itself would not be maintainable. The learned APP for the State, on the other hand, submitted that it was duty of the husband to prove that he has given lawful divorce to his wife and mere averment in the written statement was not sufficient for dismissing the application under section 125. He invited my attention to the judgment of the Full Bench of this court in Dagdu Chotu Pathan Vs. Rahimbi Dagdu Pathan and Others 2002(3) Maharashtra Law Journal Page 603. 3. In my view there is no case made out by the petitioner for interfering with the order passed by the learned Single Judge for rejecting his application for condonation of delay. Even if the said application had been 3 W 1854.10 allowed, in view of clear, legal and settled position that the husband has to prove that he has given proper legal divorce to his wife in the proceedings under section 125. The petitioner - husband, therefore, otherwise would not have succeeded in the said criminal revision application filed by him challenging issuance of process by the learned Magistrate on the application filed by the respondent-wife under section 125 of the Code of Criminal Procedure. The reliance placed on the judgment by the petitioner, in my view, will not apply in view of ratio of the judgment given in the Full Bench in case of Dagdu Chotu Pathan. Hence the writ petition is dismissed. 4. All contentions raised by the petitioner in this petition regarding maintainability of the maintenance application filed by the respondent-wife are kept open. (V.M.KANADE, J.)