( 1 ) THE petitioner and the respondent married on 28-10-1972 in Davangere. The petitioner is working as a Supervisor in' the Aluminium Factory in Belgaum. His carry home salary is Rs. 755 p. m. Due to various reasons, the petitioner divorced the respondent on 10-7-1973 by pronouncing Thalak. On 20-4-1974 the respondent filed an application before the Judicial Magistrate Fkst Class, davangere, under S. 125 Cr. P. C. 1973 (to be hereinafter referred to as the new code), praying for maintenance at the rate of Rs. 400/- per month. The Magistrate awarded Rs. 250/- p. m. as maintenance to her from the date of the application. The petitioner has challenged that order in this revision petition.

( 2 ) THE above narrated facts are undisputed. Sri B. G. Sridharan, the learned advocate appearing on behalf of the petitioner, urged only two grounds. The first one is that the Magistrate was not right in not specifying the period during which the maintenance was to be paid by the petitioner, inasmuch as the period could not have been beyond the period of iddat from 10-7-1973. He in this connection further urged that the period of iddat would any-how expire before 1-4-1974 and as such. the application filed by the respondent on 20-4-1974, would be only in regard to past maintenance and such applications are not maintainable under S. 125 of the new Code. The second ground urged by him is that the Magistrate was not right in awarding Rs. 250/- p. m. as maintenancd and if at all the respondent is entitled to maintenance, the amount could not be more than Rs. 100,/- p. m.

( 3 ) IN support of the first ground, Sri Sridharan argued that under Mohammaden, law a wife is entitled to be maintained by her husband even after divorce only upto the expiry of the period of iddat and thereafer she has no right to claim maintenance from her husband. The Magistrate having not fixed the period of maintenance, has granted to the respondent maintenance beyond what she was entitled to under the personal law. He contended that in that view of the matter, the order passed by the Magistrate cannot be sustained. He nextly argued in this very connection that the period of iddat has expired long prior to 20-4-1974 the date of application, and as such the claim of the respondent before the magistrate was for past maintenance and such a claim cannot be agitated under s. 125 of the new Code. He placed reliance on the decisions in Shekhammian v. Jehangirmian AIR 1930 Bom. 178. , Wahab AH v. Qamro Bi air 1951 Hyd. 115. , Mohd Shamshuddin v. Noor jahan Begum AIR 1955 Hyd. 144. , Chandbi v. Bandesha AIR 1961 Bom. 121. and mohammed Ibrahim v. Ahemed bee (1966) 2 Mys. L. J. 666. . In all these decisions, it has been held that a wife who has been divorced, can claim maintenance only for. the period of iddat and not for a period beyond it.

( 4 ) SRI S. R. Ramanathan, the learned Advocate appearing on behalf of the respondent, urged that the word 'wife' was not defined in S. 488 Cr. P. C. 1898 (to be hereinafter referred to as the old Code) and as such the above cited explains who is a wife' for purposes of the section. It is seen from the Explanation to S. 125 of the new Code that for purposes of this Chapter, viz. , Chapter ix of the new Code, 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. ID view of this explanation Sri. Ramanathan argued that the concept found in the above cited decisions that a divorced wife is entitled to maintenance for the period of iddat and not to any period thereafter, under S. 488 ot the old Code, is no longer available as according to S. 125 of the new Code a divorced woman can claim maintenance from her husband till she is re-married.

( 5 ) SRI. Sridharan argued that when the respondent had no right under her personal law, to be maintained by her divorced husband beyond the period of iddat, she cannot be permitted to claim the same under S. 125 of the new Code he contended that the

Click Here to Read the rest of this document