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3. The Family Court has held that there had been a divorce duly effected and, therefore, claim for maintenance would be determined under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. With regard to maintenance of child, the Family Court has directed that interim maintenance granted would continue pending final disposal of the case. Hence this petition.

4. The question which arises for consideration is whether there had been a divorce duly effected. Under the Mohammedan Law, divorce by talak may be effected either orally (by spoken words) or by a written document called a talaknama. No particular form of words is prescribed for effecting a talak, but the words of divorce must indicate an intention to dissolve the marriage (see Mulla's Principles of Mohammedan Law).

8. The next question which arises for consideration is whether divorce by talak has been proved. The case of the husband is that he had divorced his wife by a written document in presence of the witnesses and he handed over talaknama to his wife. Thereafter, a photostate copy of the talaknama was made over to Sadar Kazi of Gauhati for registration of the divorce. A photostat copy of talaknama has been filed. It is settled that a photostat copy of a document is admissible as secondary evidence, if it is proved to be genuine (see Ashok Dulichand v. Madhavlal Dube, AIR 1975 SC 1748). In the present case, the foundation for admission of the photostat copy as secondary evidence has not been laid. No attested copy of the entry of registration of divorce has been produced. Therefore, the husband has failed to prove alleged talaknama. However, in the evidence of the husband, he has stated that he also made pronouncement of the word "talak" three times. There is no evidence or material to corroborate that talak was effected orally. That apart, the written statement indicates that the case is solely based on talaknama. Under the circumstances, it is held that the talak pleaded has not been proved. Further, we have concluded that the divorce must be for reasonable cause and it must be preceded by pre-divorce conference to arrive at a settlement. There is no evidence that there was a pre-divorce conference. In that view of the matters, the husband has failed to prove the alleged divorce by talak.

10. In the above cited cases, wife made claim for maintenance under Section 488(old): 125(new), Cr. P. C. In those cases, it has been held that where in a proceeding started under Section 488(old) : 125 (new), Cr.P.C. by a Mohammedan wife against her husband for her maintenance, the husband states in the written statement that he had already divorced his wife and the Court comes to the conclusion that divorce pleaded is not proved, then such a statement in the written statement itself operates as an expression or declaration of divorce by talak, and the divorce would be held to take effect at least from the date on which the written statement was filed by the husband. The reason for the decision is that the statement made by the husband orally in his deposition or in his written statement that he had divorced his wife is an acknowledgement of talak alleged to have effected by him already and, therefore, the divorce would be held to have effect at least from the date upon which the acknowledgement in made.

11. We respectfully submit that we are unable to agree with the decisions in the above-referred cases for the following reasons. Written statement is a pleading. Pleading is one thing and proof is another. Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is to be expected at trial. Proof is establishment of a fact by evidence or matters before the Court or legal Tribunal. Where the parties are in dispute as regards a material fact, in averment in the pleading does not constitute evidence, as what is stated in the pleading is recital of past event which is required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it follows that the Court considers or believes that the fact does not exist. Therefore, averment in the pleading cannot be used in favour of the maker. This being the position, statement made by the husband in his pleading or deposition that he has divorced his wife is recital of past event, and, if talak pleaded is not proved such statement shall be of no consequence. In that view of matter, if statement made by the husband that he had divorced his wife in his pleading or deposition is considered as an acknowledgement of divorce by talak, it will be against the policy of law, and it would also amount to furnishing or providing evidence of talak, which is against the rule of pleading and proof. That apart, in view of our conclusion above that divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference, if the statement made orally in evidence or in the written statement that the husband his divorced his wife in a proceeding under Section 125 Cr. P.C. will be a valid talak from the date of making statement cannot be sustained as it would be contrary of our conclusion. For the reasons stated above, the contention of Mr. Barua is rejected.