S.R.K. PRASAD, J.

( 1 ) THE petitioner seeks quashing of the proceedings in Crl. R. P. No.74 of 1999 as well as the order passed in Crl. M. P. No. 1850 of 1992 in M. C. No. 21 of 1986 on the file of Judicial First Class magistrate, Kurnool.

( 2 ) A brief resume of background of facts is necessary.

( 3 ) IT is an undisputed fact that the petitioner married the 1st respondent herein under Muslim Law. The petitioner herein presented M. C. No. 21 of 1986 claiming maintenance against the 1st respondent herein. The lower Court granted maintenance. Some amounts were said to have been paid. The order has become final. The 1st respondent herein presented Crl. M. P. No. 1850 of 1992 in M. C. No. 21 of 1986 for cancellation of the maintenance granted in favour of the petitioner. The said petition was dismissed on 4-3-1994 and the matter was carried in revision being C. R. P. No. 36 of 1994 before the III Additional Sessions judge at Kurnool. The HI Additional Sessions judge, Kurnool, through his order dated 23-6-1995, remanded the matter to adjudicate the Crlm. P. No. 1850 of 1992 afresh. Thereupon the Judicial First Class Magistrate, Kurnool set aside the order granting maintenance on the ground that the talaq comes into effect only from the date of petition. i.e., from 5-11-1992. The petitioner, who is aggrieved, has carried the matter in revision in C. R. P. No. 74 of 1994 on the file of II Additional District and Sessions Judge, Kurnool.

( 4 ) THE learned II Additional District judge, Kurnool confirmed the order of the lower Court cancelling the maintenance from the date of communication of talaq. i.e., from the date of the petition in Crl. M. P. No. 1850 of 1992. Thereupon the wife has preferred this Criminal Petition seeking quashing of the proceedings.

( 5 ) THE petitioners Counsel mainly assails the order on the ground that there was no divorce and it had not been raised during the proceedings in M. C. No. 21 of 1986. It is also contended that even assuming that the divorce is granted, she is entitled to maintenance beyond the Iddat period and that the question of cancelling of the order passed in M. C. No. 21 of 1986 does not arise.

( 6 ) THE learned Counsel appearing for the 1st respondent contends that the divorce is not disputed and when once there is divorce, the question of payment of maintenance beyond the Iddat period does not arise. The amount awarded up to that period is a reasonable one.

( 7 ) THE learned Public Prosecutor contends that it is not a fit case where inherent powers can be exercised to quash the proceedings since the lower Court has rightly cancelled the order which has been passed granting maintenance and there is no need to set aside the order passed by the lower Court.

( 8 ) ADVERTING to the said contentions, the 1st respondent has presented the Crl. M. P. No. 1850 of 1992 for cancellation of the maintenance order in M. C. No. 21 of 1986 on the sole ground that he has given divorce to his wife. It is also alleged that the same was communicated to the petitioner herein by registered post later and also remitted the mehar amount of Rs. 525/- to the petitioner- wife on 9-6-1990 and Rs. 500/- towards Iddat period maintenance on 19-6-1990. The petitioner has contended that the act of giving divorce as well as validity or otherwise of the talaq was not decided by the lower court. It is also contended by the 1st respondents Counsel that there is no need to give any decision regarding the validity of talaq. The lower Court observed that giving talaq has not been raised in maintenance proceedings. It appears that a talaq was given before the Khajis office on 23-10-1992 under Ex. P-4, and Ex. P-5 is translated copy of Ex. P-4. The lower Court felt that there is no communication of talaq to the wife. The lower Court has proceeded to deal with the case on the premise that talaq would be effective only from the date of presentation of the petition into Court. i.e., 5-11-1992. Hence it presumed the validity of talaq from the date of presentation of the petition into Court for the enforceability of talaq.

( 9 ) THE learned II Additional District judge, who entertained the revision has observed that he need not place reliance on the judgment of Guahati and Calcutta High courts viz. , Ano-waruddin Ahmed v. State and another, 1989 Crl. LJ NOC 20 (Cal.) page 11, and Musstt. Arab Chanti Begum v. Md. Azizur Rahman, 2001 Crl. LJ 21 and decisions reported in Usman Khan Bahamani v. Fathimunnisa Begum and others, AIR 1990 AP 225 [LQ/TelHC/1990/84] and Nazir Ahmed Ansari v. Lateefbi and another, 1996 (1) ALD 132 = 1996 (1) ALT (Crl.) 419.

( 10 ) IT is clear that the validity of giving talaq is disputed in this case. The point that arises for consideration is whether talaq can be enforced without communication and whether the same can be done using the judicial process namely presenting petitions before the Court or mentioning the same in the counters. It has also to be considered as to how validity to the talaq can be given. All these matters have fallen for consideration in decision reported in Shamim Ara v. State of U. P. and another, 2002 (7) Supreme 39. Wherein the correct law of talaq as ordained by Holy Quran has been mentioned. The relevant paragraphs 11,12 and 15 read as follows: "V. Khalid, as His Lordship then was, observed in Mohammed Haneefa v. Pathummal Beevi, 1972 K. L. T. 512 -" I feel it my duty to alert public opinion towards a painful aspect that this case reveals. A division Bench of this Court, the highest court for this State, has clearly indicted the extent of the unbridled power of a Muslim husband to divorce his wife. I am extracting below what their Lordships have said in Pathayi v. Moideen (1968 KLT 763 [LQ/KerHC/1968/232 ;] ">(1968 KLT 763 [LQ/KerHC/1968/232 ;] [LQ/KerHC/1968/232 ;] ). "The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi Law. . . . . . . . . . . The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge. "Should Muslim wives suffer this tyranny for all times Should their personal law remain so cruel towards these unfortunate wives Can it not be amended suitably to alleviate their sufferings Can it not be amended suitably to alleviate their sufferings My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed. " 12. In an illuminating judgment, virtually a research document, the eminent Judge and jurist V.R. Krishna Iyer, as His Lordship then was, has made extensive observations. The judgment is reported as A. Yousuf Rawther v. Sowramma, AIR 1971 Kerala 261. It would suffice for our purpose to extract and reproduce a few out of the several observations made by His Lordship:- "the interpretation of a legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background, which inspired the enactment of the law before locating the precise connotation of the words used in the statute, (para 6)"since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim Jurists that the Indo-Anglian judicial exposition of the Islamic Law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture - law is largely the formalized and enforceable expression of a communitys cultural norms-cannot be fully understood by alien minds. The view that the Muslim husband enjoys a arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. " (para 7)"it is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. "The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, if they (namely, women) obey you, then do not seek a way against them". (Quran 1v: 34 ). The Islamic "law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of god, said the Prophet, rests on him who repudiates his wife capriciously " (para 7)"commentators on the Quran have rightly observed and this tallies with the law now administered in some Muslim countries like Iraq - that the husband must satisfy the court about the reasons for divorce. However, Muslim Law, as applied in India, has taken a course contrary to the spirit of what the prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wifes right to divorce. " (para 7)"after quoting from the Quran and the prophet, Dr. Galwash concludes that "divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by talaq or by khula. . . . . . . . . . . . . . Consistently with the secular concept of marriage and divorce, the law insists that at the time of talaq the husband must pay off the settlement debt to the wife and at the time of Khula she has to surrender to the husband her dower or abandon some of her rights, as compensation. " (para 7 ). 12. The plea taken by the husband-respondent no. 2 in his written statement may be re- noticed. The respondent No. 2 vaguely makes certain generalized accusations against the wife-appellant and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, the respondent No. 2 proceeds to state, vide para 12 (translated into English) - "the answering respondent, feeling fed up with all such activities unbecoming of the wife-petitioner, has divorced her on 11-7-1987". The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and the respondent No. 2 except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq. ". . . . . . There is no proof of talaq having taken place on 11-7-1987 and the High Court has uphold as the talaq is the plea taken in the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. It is further observed: we do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery a copy thereof to the wife. So also the affidavit dated 31-8-1988, inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as relevant and of any value.

( 11 ) HENCE it is clear that the talaq has to be communicated to the wife. The lower court found, for want of evidence, that the talaq was not communicated. Mere pronouncement before Khazi does not constitute a sufficient compliance of talaq unless it is communicated to the wife, who is affected party. It has not been done in this case. On mere raising a plea in the petition presented before this Court and service of the same on the party cannot be treated a valid talaq since such a communication cannot be taken as correct.

( 12 ) IT is observed by the Supreme Court in the above said decision that talaq may be oral or in writing and it must be for a reasonable cause. It must be preceded by an attempt of reconciliation of husband and wife by two arbitrators one chosen from the family of the wife and other by husband. If their attempts fail then talaq may be effected by pronouncement. The said procedure has not been followed. The Supreme Court has culled out the same from Mulla and the principles of Mohammedan Law.

( 13 ) THE decision reported in Syed Jamaluddin v. Valian Bee, 1975 (2) APLJ 20, has been considered in this case and the supreme Court has categorically stated that there cannot be any valid divorce by raising pleas in the petitions. It is clear from the observations made in paragraph 16 that there cannot be a talaq by raising the plea in the written statement. Hence the decision reported in 1975 (2) APLJ 20 must be deemed to have been overruled by Supreme Court. The only pronouncement that governs the guidelines and the principles is the one reported in Shamim Aras case (supra).

( 14 ) IN the light of the principles enunciated by Supreme Court it has to be considered. It is clear from the finding given by the lower Court that there is no communication of divorce. The alleged communication said to have been made by presenting a petition before the Court is equally invalid. In the absence of communication, it cannot be said that it has come into force from the date of filing of the petition. The finding given by lower Court and also the Revisional Court is certainly contra to the principles laid down by the Supreme Court.

( 15 ) I disagree with the contention of the 1st respondents Counsel that there is no need to decide about the validity of the talaq since two Courts have given a finding about the validity of divorce. The matter is still sub judice and it is subject to adjudication to be made by this Court in its proceedings. Moreover, it is for the 1st respondent to show that it is for reasonable cause and it has been preceded by an attempt of reconciliation by the husband and wife to find two arbitrators, one chosen by the family of the wife and the other by the husband. There is no evidence forthcoming regarding the same. In the absence of evidence and material, I must state that the talaq is not for a reasonable cause, since no attempt is made to show that it is for reasonable cause. Mere differences in between husband and wife cannot be said to be a reasonable cause for giving talaq and putting an end to the marital relationship and severing the status of the husband and wife.

( 16 ) I am of the considered view that the alleged talaq is not a valid talaq as it is not in accordance with the principles laid down by the Supreme Court. If there is no valid talaq the relationship of the wife with her husband still continues and she cannot be treated as a divorced wife. She can be treated as only a deserted wife.

( 17 ) IT is contended by the petitioners counsel by placing reliance on a decision reported in Danial Latifi v. Union of India, (2001) 7 SCC 740 [LQ/SC/2001/2225] , wherein it is held that the Muslim husband is under obligation to maintain his wife beyond the Iddat period. Adverting to the same the entire law has been laid down in the above decision (supra) while considering the principles of Muslim women (Protection of Rights on Divorce) act, 1986. The relevant portion at paragraph 36 reads as follows: while upholding the validity of the, we may sum up our conclusions: (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the Iddat period must be made by the husband within the Iddat period in terms of Section 3 (1) (a) of the. (2) Liability of a Muslim husband to his divorced wife arising under Section 3 (1) (a) of theto pay maintenance is not confined to the Iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the Iddat period can proceed as provided under Section 4 of theagainst her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf board established under the fact to pay such maintenance. (4) The provisions of the do not offend articles 14, 15 and 21 of the Constitution of India".

( 18 ) IT is abundantly made clear by the supreme Court in the above paragraph that the divorced Muslim wife is entitled to maintenance beyond the Iddat period. If such a reasonable and fair provision for maintenance is made within the Iddat period, it means that the husband and wife can stipulate the future maintenance beyond the Iddat period within the Iddat period. If there is no settlement of the maintenance claim before the Iddat period or during the Iddat period she can no longer claim against her husband the moment Iddat period is over.

( 19 ) HENCE it is clear that the obligation of husband to settle the claim for future maintenance lies up to Iddat period. The Muslim woman cannot demand as a matter of right the future maintenance beyond the Iddat period if it is not settled with her husband within the Iddat period. I also state that the remedy open to the Muslim divorced woman, whose claim for future maintenance is not settled within the Iddat period is only to proceed against the relatives mentioned under Section 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 as can be seen below.

( 20 ) SECTION 4, Muslim Women (Protection of Rights on Divorce) Act, 1986 reads as follows: order for payment of maintenance : (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order: provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her; provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the State Wakf Board established under Section 9 of the Wakf act, 1954, or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order. "

( 21 ) IT is clear from the said provisions, she can make a claim against the parents and children and if they are unable to pay, an obligation has been now cast on the Wakf Board to award maintenance to the divorced woman.

( 22 ) IN view of the finding that there is no valid divorce the question of invoking those provisions does not fall for consideration in this case. The 1st respondent has come to the Court to cancel the order of maintenance claimed on the sole ground that divorce has been given and he is under no obligation to give maintenance to the wife as she has been a divorced woman.

( 23 ) IT is clearly found that there is no valid divorce. In view of the invalidity of divorce the question of invoking the jurisdiction for cancellation of maintenance order passed in M. C. No. 21 of 1986 on the file of Judicial First Class Magistrate does not arise. Both the Courts have applied correct law as on the date of disposal of the petitions and subsequently Supreme Court laid down the principle. The legality of the divorce cannot be upheld by this Court, as the divorce is not in accordance with the principles laid down by the Supreme Court. When there is no legally valid divorce, the question of canceling the order does not arise. As there is miscarriage of justice and non-application of correct law this Court has to exercise its inherent powers and accordingly quash the proceedings namely canceling the order of maintenance granted by the lower Court, which has been confirmed by the Revisional Court while observing that the divorce is invalid divorce.

( 24 ) THE Petition allowed accordingly. The maintenance order passed in M. C. No. 21 of 1986 shall continue to be in force.