(1.) Heard learned counsel for petitioner and respondent No. 1.
(2.) It may be noted that Mr. Kishor Ghute Patil, was advocate for respondent No. 2 husband. However, On 26-7-2006, he had submitted a note to the Registrar of this Court informing that as per the directions given by this Court to deposit the arrears of maintenance amount, he had communicated the order to respondent No. 2 but he had not complied with the directions and thereafter, by notice dated 12-9-2003, he had informed respondent No. 2 that he was withdrawing from this petition and he had also returned the brief to respondent no. 2 with a request that he should make arrangement for conducting the case. Notice was served on him. However, in spite of that respondent No. 2 did not make any arrangement for appearance on his behalf. As such none is present for respondent No. 2.
(3.) Admittedly, the petitioner and respondent No. 2 were married sometimes in 1984 and out of this wedlock, they have also a son namely Arif. The petitioner and her minor son had filed Criminal Misc. Application No. 128/1986 on 16-12-1986 under section 125, Criminal Procedure Code claiming maintenance against respondent No. 2. In that application respondent No. 2 filed a written statement/say on 10-7-1987 pleading that he had already given divorce to the applicant on 9-12-1986 in writing and communicating the said writing to her by Registered Post A. D. on the same day. This fact was denied by the applicant. After hearing the parties, the learned Magistrate came to the conclusion that communication of divorce on 9-12-1986 was proved because the applicant had refused to accept the envelop containing the notice about divorce. The learned Magistrate relying upon authority of this High Court in mahaboobkhan Faizullakhan vs. Parveenbanu and another, 1988 Mh. LJ. 781, came to the conclusion that on coming into force of Muslim Women (Protection of Rights on Divorce) Act, 1986, provisions of section 125, Criminal Procedure code stand repealed in view of section 7 of the said Act and as before filing of the application under section 125, Criminal Procedure Code on 16-12-1986, the husband had already given divorce to the wife, she could not claim maintenance under section 125, Criminal Procedure Code but she could claim maintenance for iddat period under the said Act. With these observations the application came to be rejected. That order was challenged by the present applicant and her minor son in Criminal Revision Application No. 24/1990. The learned Additional Sessions judge by its judgment dated 25-1-1991 partly allowed the Revision Application and granted maintenance to the child at Che rate of Rs. 100/- p. m. However, holding that the applicant was given divorce at least with effect from 10-7-1987 when written statement/say taking plea of divorce was filed by husband and copy of which was served on her, the learnedl Addl. Sessions Judge directed the husband to pay maintenance to the: applicant at the rate of Rs. 200/- from the date of application till 10-7-1987. Being not satisfied the wife filed the present Writ petition challenging the observations and order passed by the Additional Sessions judge, Osmanabad. According to her, respondent No. 2 had not given divorce to her. Plea taken by him in the written statement cannot be taken as divorce and as he had failed to prove that the divorce was actually given, the marriage still subsist and she is entitled to get maintenance under section 125, Criminal procedure Code.