HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL PETITION No.5452 of 2007 ORDER: This Criminal Petition is filed for quashing the proceedings dated 23.08.2006 in M.C.No. 5 of 2006 on the file of the Judicial Magistrate of First Class (Prohibition and Excise), Mahaboobnagar, as confirmed by order dated 02.04.2007, in R.P.No.54 of 2006 on the file of the I Additional Sessions Judge, Mahaboobnagar. Heard the learned counsel for the petitioner and the first respondent. Perused the records. The first respondent herein is the wife of the petitioner. She along with her three children filed M.C.No.5 of 2006 against the petitioner claiming maintenance of Rs.3,000/- P.M. to each of them. According to the claimants, the petitioner herein married the first respondent in 1994 and they lived happily for about ten years during the course of which they gave birth to two daughters and a son and subsequently, the petitioner herein started alleging that the first respondent developed illegal intimacy with one Sohail. It is further alleged that the petitioner has driven away the first respondent and her children from the house on 26.11.2004. According to the claimants, the petitioner herein is having lands and house property and is also realising rents and the petitioner neglected to provide any maintenance. The petitioner herein filed a counter before the learned Magistrate alleging that he has divorced the first respondent herein on 14.03.2005 as she was not faithful to him and sent mahr amount of Rs.5,000/- to her on 17.03.2005 and on refusal, he deposited the same in the post office. The petitioner herein further contended that he created a trust in respect of the house property situated at Boyammathota and he sold a portion of the shop to clear the debts and that he is getting annual income of Rs.46,000/- by way of rents from the building and he is ready to take the children into custody and maintain them. He also offered to pay maintenance of Rs.1,250/- to each of the three children. During the enquiry PWs.1 to 3 were examined and Exs.P.1 to P.8 were marked on behalf of the first respondent herein. RW.1 was examined and Exs.R.1 to R.12 were marked on behalf of the petitioner herein. On a consideration of the evidence available on record, the learned Magistrate held that the first respondent-wife is entitled to claim maintenance as the petitioner herein failed to prove that there was any valid talaq between him and the first respondent. The learned Magistrate further held that the wife and the three children are each entitled for a sum of Rs.1,700/- P.M. towards maintenance. Aggrieved by the same, the petitioner herein filed a revision petition in R.P.No.54 of 2006 on the file of the I Additional Sessions Judge, Mahaboobnagar. By order dated 02.04.2007, the learned Sessions Judge dismissed the revision petition and confirmed the findings recorded by the learned Magistrate and also the amount awarded towards maintenance. In fact, the learned Sessions Judge observed that the wife and the children are entitled for a higher amount towards maintenance but since they have not filed any revision the amount awarded by the trial Court was not disturbed. Questioning the said order dated 02.04.2007, the present criminal petition is filed. The learned counsel for the petitioner would mainly contend that the petitioner has pronounced talaq because of the infidelity of the first respondent and, therefore, she is not entitled for grant of maintenance under Section 125 Cr.P.C. and her remedy is only to initiate proceedings under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the 1986 Act’). In that connection, he relied upon a decision of this Court in S.Abdul Salam v. S.Gousiya Bi[1], wherein it was held that the two Acts i.e. Section 125 Cr.P.C. and Section 3(1)(b) of the 1986 Act cover two different situations and the special enactment would prevail over general enactment. In the above case, the factum of divorce was not in dispute and the petitioner therein was divorced wife and, therefore, it was held that her remedy was to file an application under Section 3(1) (a) of the 1986 Act and not under Section 125 Cr.P.C. The above decision is not applicable to the facts of the present case. Learned counsel for the petitioner also relied upon a decision in Iqbal Bano v. State of U.P.[2] wherein it was held that the 1986 Act applies only to divorced women and not to a woman who is not divorced. It was further held that the view expressed by the First Revisional Court that no muslim woman can maintain a petition under Section 125 Cr.P.C. is clearly unsustainable. The 1986 Act only applies to divorced women and not to a woman who is not divorced. Furthermore, proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court noticed that there was a divorced muslim woman who had made an application under Section 125 Cr.P.C. it was open to the Court to treat the same as a petition under the 1986 Act considering the beneficial nature of the legislation, especially since proceedings under Section 125 Cr.P.C. and claims made under the Muslim Women Act are tried by the same court. The above decision is also not applicable to the present case for the simple reason that, in the above case also, the plea of divorce was upheld. In the present case, both the Courts below have disbelieved the version of the petitioner herein that he pronounced talaq and, therefore, the first respondent is a divorced wife. The question which then arises for consideration is whether the first respondent herein is a divorced wife of the petitioner. It is not disputed that the petitioner and the first respondent lived happily for about ten years from 1994 to 2004 and during their lawful wedlock they gave birth to two daughters and a son. According to the petitioner, the first respondent developed illicit intimacy with one Sohail and, therefore, he pronounced talaq. The first respondent categorically denied that she had any such illicit intimacy with Sohail or that there was any pronouncement of talaq. Except self-serving testimony of RW.1, there is no other evidence adduced by him to substantiate the allegation that the first respondent developed illicit intimacy with one Sohail. He claims to have pronounced talaq in her absence and, later, sent communication by registered post and as PW.1 refused to receive the same, he sent Rs.5,000/- towards mahr amount through money order which amount was also refused by PW.1. Thereafter, the said amount is said to have been deposited in the post office and he claims to have got public notice issued in ‘Munsif’ Urdu daily newspaper on 19.03.2005. Ex.R.3 is stated to be the deed of divorce, talaq-nama, wherein it is mentioned that one M.A.Bari and Md.Ayub were present at the time of pronouncement of talaq. Neither the said M.A.Bari nor Md.Ayub was examined to prove the factum of pronouncement of talaq. When the petitioner made a serious allegation against the first respondent touching upon her character and attributed infidelity, the burden squarely lies on the petitioner herein to prove the same. Except making a wild allegation, the petitioner has not made any effort to substantiate the same. In the absence of proof of pronouncement of talaq in a valid manner, the subsequent conduct of the petitioner in sending the mahr amount of Rs.5,000/- or issuing a general notice of publication in newspaper are of no consequence as the petitioner failed to prove that there is valid divorce between him and the first respondent. Both the Courts below have held that the first respondent continued to be the wife of the petitioner and, therefore, she is entitled to claim the maintenance under Section 125 Cr.P.C. The said concurrent finding recorded by the Courts below on the question of fact on due appreciation of the evidence available on record does not, therefore, call for any interference by this Court. Regarding the quantum of maintenance, admittedly, the petitioner herein is an affluent person having both immovable and movable properties, which included land, residential houses and shops, fetching substantial rents. The evidence on record shows that the petitioner himself admitted that he belongs to an affluent family in Mahaboobnagar town and the family owns 5 to 6 gold jewellery shops. The learned Magistrate awarded maintenance of only Rs.1,700/- P.M. to the wife and each of the three children. The learned Sessions Judge found fault with the same observing that in view of the affluence of the petitioner herein, the learned Magistrate ought to have awarded higher amount befitting the status of his family and the financial resources of the petitioner herein, but, however, confirmed the amounts awarded by the learned Magistrate as no revision was preferred by the wife and children. It is stated that, subsequently, the children filed an application for enhancement of maintenance and the same was allowed awarding maintenance of Rs.2,500/- P.M. each to the two daughters. The said enhancement is, however, not the subject matter of the present proceedings. In so far as the present petition is concerned, the impugned order awarding maintenance of Rs.1,700/- P.M. to the wife and each of the three children by the learned Magistrate and confirmed by the learned Sessions Judge in the revision petition do not call for any interference by this Court. In the circumstances, it is held that there are absolutely no merits in the present petition. In the result, the Criminal Petition is dismissed. G.V.SEETHAPATHY,J Date:15.07.2010 usd [1] 2007 Crimes(4) 326 [2] 2007(6) SCC 785