1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT NAJMA VS. RIYAJ MOHAMMAD S.B.Cr. Revision Petition No.764 Of 1998 under Section 397 read with section 401 Cr.P.C. against the order dated August 12, 1998 of Judge, Family Court Kota in criminal case No. 572 of 1996 whereby maintenance of five months was awarded to the petitioner. Date of Order : March 20, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Anil Upman for the petitioner Mr. P.S.Sirohi, for the respondent. BY THE COURT : This revision petition has been filed by the petitioner against the order dated August 12, 1998 of Judge, Family Court Kota in criminal case No. 572 of 1996 whereby maintenance of five months was awarded to the petitioner. 2. Brief facts giving rise to this revision petition are that the marriage of the petitioner with respondent had taken 2 place about 10-12 years prior. The respondent was not keeping the petitioner well and she was driven out from the house. The husband went to Saudi Arabia. The father of the petitioner is of old age and was not able to maintain her. When husband refused to maintain her on August 9, 1996 she moved an application under section 125 Cr.P.C. seeking maintenance and it was stated that husband is having sufficient income. 3. The respondent filed reply to the application and submitted that he had given Talaq to his wife and now she is not his wife and is not entitled for maintenance. In the additional plea in para No.4 the respondent stated that he had earlier given Talaq by stating 3 times that I am giving Talaq to Najma. The reply was filed on October 23, 1996. After recording the evidence of the parties, the court below considered that the wife is entitled for maintenance from August 9, 1996 till the date of 3 application dated January 20, 1997 @ Rs. 500 per month and amount of Iddat @ 500 per month meaning thereby awarded Rs. 4,000 to the petitioner. The court considered that the Talaq of the petitioner is treated from the date of reply to the application. Hence this revision petition by the petitioner. 4. Mr. Upman, learned counsel for the petitioner averred that the court below has committed serious illegality in considering that the respondent had given Talaq to his wife by way of making averments in this regard in the reply to the application. Giving of Talaq by this mode is not proper one and the husband also did not appear in evidence to corroborate the fact of Talaq narrated in the reply to the application and since the averment of the respondent is not proved by way of evidence, the court below has wrongly treated it as a legally given Talaq. The learned counsel submitted 4 that no Talaq was given to the petitioner and the respondent had remained absent from appearing in the court to corroborate the fact of giving Talaq and as such the court below had fallen into error in awarding maintenance only for 5 months till January 20, 1997 while the petitioner who was entitled for maintenance till the date of giving Talaq in a legal manner. The order of the court below in these circumstances deserves to be quashed and set aside. 4. Mr. P.S.Sirohi, appearing on behalf of the respondent stated that the order passed by the Family Court is just and proper as maintenance of five months was allowed till the period of Talaq and total Rs. 4,000/- allowed including the period of Iddat. Thus the order of the family court cannot be said to be illegal and there is no infirmity in it. The order is perfectly according to law. No interference is called for in revisional 5 jurisdiction. 5. I have heard learned counsel for the parties. It is true that the respondent had given Talaq to his wife by way of making averments in the reply to the application. Giving of Talaq by this mode is not proper one and the husband also did not appear in evidence to corroborate the fact of Talaq narrated in the reply to the application. I have gone through the reply submitted by the respondent, which was submitted on October 23, 1996. The reply is not supported by any affidavit. Since the averment of the respondent is not proved by way of evidence, the court below wrongly treated it as a legally given Talaq. It is also true that the respondent had remained absent from appearing in the court to corroborate the fact of giving Talaq. Thus the order of the court below deserves to be set aside and the matter requires to be remanded back to the court below to rehear the 6 parties. 6. For these reasons, the revision petition is allowed and the order of the court below dated August 12, 1998 is set aside and the matter is remanded back to the court below to rehear the parties and pass a fresh order within fifteen days of filing of the certified copy of the order of this court. As the main petition has been disposed, the stay application also stands disposed. (Mahesh Chandra Sharma) J. OPPareek/