Partha Sakha Datta, J. - (1.) The order dated 12.12.08 passed by the learned ACJM, Uluberia in Misc. Case No 109/08 is under challenge.
(2.) The opposite party herein filed an application under section 125 Cr.PC before the learned Magistrate, being Misc. Case No. 109/08, praying for maintenance against the present petitioner. The opposite party filed a written objection against the said petitioner challenging the narrative of the wife. At the threshold of hearing, the petitioner prayed before the learned Magistrate for rejection of the petition on the ground that the opposite party is a talaqui wife and the petition accordingly under section 125 Cr.PC was not maintainable. Learned Magistrate observed that in the four comers of the written objection no plea was taken therein that the petitioner before the learned Magistrate was a talaqui wife and accordingly subsequent petition praying for rejection of the application under section 125 Cr.PC questioning maintainability of the proceeding does not deserve acceptance. Learned Magistrate observed that though under the Muslim Law a divorced Muslim woman is not entitled to maintenance under section 125 Cr.PC the question as to whether the petitioner before him was or was not a talaqui wife has to be decided through evidence both oral and documentary as may be tendered only at the trial not before trial.
(3.) Against the order dated 12.12.2008 the revisional application has been taken out by the petitioner on the ground that it was incumbent upon the learned Magistrate to hold that the opposite party was divorced on 19th November 2007 in presence of her mother and brother's wife by the present petitioner and as such in view of the provision of the Muslim Women (Protection of Rights on Divorce) Act, 1986 the proceeding under section 125 Cr.PC was not maintainable and the learned Magistrate committed error in continuing with the proceeding. Learned Advocate appearing for the petitioner submitted that the question of maintainability of the proceeding under section 125 Cr. PC should be decided first before proceeding with the proceeding under section 125 Cr.PC The provisions of the Muslim Law have been read before the Court and in support of the submission the provision of the Act 1986 have been placed.;