A divorced wife is entitled to maintenance allowance under section 125 of the Code of Criminal Procedure, 1973, even after the payment of Mehr and Iddat, provided that the amount of Mehr and Iddat is not sufficient for her maintenance.

Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 127(3)(B) OF THE CODE OF CRIMINAL PROCEDURE, 1973 - A DIVORCED WIFE IS ENTITLED TO MAINTENANCE ALLOWANCE UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973, EVEN AFTER THE PAYMENT OF MEHR AND IDDAT. THE AMOUNT OF MEHR AND IDDAT SHOULD BE SUFFICIENT FOR THE MAINTENANCE OF THE WIFE.
Fact of the Case:

The petitioner, a divorced wife, filed a petition under Article 227 of the Constitution of India challenging the order of the Additional Sessions Judge, Solapur, dismissing her application for maintenance under section 125 of the Code of Criminal Procedure, 1973. The petitioner's husband had divorced her through a public notice and had married another woman. The petitioner had filed a civil suit for maintenance and recovery of certain amounts, including Mehr, Iddat, and the price of articles given as Dahej. The trial court had awarded her maintenance for a period of 10 months and for the Iddat period, but had dismissed her claim for maintenance after the payment of Mehr and Iddat. The petitioner had filed a revision application before the Additional Sessions Judge, who had partly allowed her application and awarded her maintenance from the date of the application to the date of payment of Mehr and Iddat. The petitioner had challenged this order in the present petition.
Finding of the Court:

The court held that the petitioner was entitled to maintenance allowance under section 125 of the Code of Criminal Procedure, 1973, even after the payment of Mehr and Iddat. The court observed that the amount of Mehr and Iddat was not sufficient for the maintenance of the petitioner and that the purpose of the payment under any customary or personal law was to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The court further held that the order of the Additional Sessions Judge confining the payment of maintenance only up to the date of payment of Mehr and Iddat was not correct and that the petitioner was entitled to maintenance allowance even thereafter.
Issues: 1. Whether a divorced wife is entitled to maintenance allowance under section 125 of the Code of Criminal Procedure, 1973, even after the payment of Mehr and Iddat. 2. Whether the amount of Mehr and Iddat should be sufficient for the maintenance of the wife.
Ratio Decidendi: 1. The court relied on the decision of the Supreme Court in Bai Tahira v. All Hussain Fissali Chottia, wherein it was held that every divorced wife otherwise eligible is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the Code of Criminal Procedure. 2. The court observed that the amount of Mehr and Iddat in the present case was not sufficient for the maintenance of the petitioner and that the purpose of the payment under any customary or personal law was to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself.
Final Decision: The court partly allowed the petition and set aside the order of the Additional Sessions Judge confining the payment of maintenance only up to the date of payment of Mehr and Iddat. The court directed that the petitioner would be entitled to maintenance allowance of Rs. 100/- per month from the date of the application, i.e. October 27, 1976.

JUDGMENT - R.S. BHONSALE, J.:---The petitioner one Abedabi d/o Daud Shaikh has filed this petition under Article 227 of the Constitution of India on behalf of herself and on behalf of her minor son Samir challenging the order passed by the learned Additional Sessions Judge, Solapur, in Criminal Revision Application No. 12 of 1978 as well as in Criminal Revision Application No. 13 of 1978 filed by her husband Sikandar Akabar Mujawar. Abedabi had filed Criminal Revision Application No. 12 of 1978 in the Court of the Sessions Judge, Solapur, against the judgment and order dated 24th January, 1978 passed by the learned Judicial Magistrate, First Class, Solapur, dismissing her application for maintenance under section 125 of the Code of Criminal Procedure.

2. In this petition the following facts are not disputed : (1) that the present petitioner Abedabi was married to respondent Sikandar Akabar Mujawar on 20th May, 1971, (2) that a son who was named Samir was born on 10th of June, 1972 out of this wedlock and (3) that as the petitioner and the respondent did not get along in their marital relationship, respondent Sikandar issued a public notice giving talaq on 6th January, 1973 and divorced her. It is also not disputed that thereafter Sikandar married one Mumtaj Begum on 29th May, 1973 and from the second wedlock two issues are born.

3. In consequence of the talaq pronounced by the respondent husband, petitioner Abedabi filed Regular Civil Suit No. 968 of 1974 on 26th September, 1974 in the Court of the Civil Judge, Junior Division, Solapur, for maintenance and for recovery of an amount of Rs. 5, 779.05. This amount consisted of four items, namely, :---

1. Rs. 751.00 as Mehr

2. Rs. 1,0000.00 as maintenance for 10 months from march to December 1972.

3. Rs. 300.00 as Maintenance for Iddat period of three months from January to March 1973.

4. Rs. 3,728.00 as price of the articles which had been given to the respondent at the time of the marriage as Dahej.

4. The decree in that suit came to be passed on 23rd July, 1973. However, respondent husband Sikandar filed an appeal against the said decree and partial stay was granted in respect of the payment of decretal amount in Regular Darkhast No. 351 of 1976 filed by the present petitioner. Abedabi after the amount of Rs. 2,833.06 was credited in the trial Court. Since the stay was in respect of the remaining amount, the Darkhast came to be disposed of on 25th July 1977 as fully satisfied.

5. Petitioner Abedabi filed Miscellaneous Application No. 26 of 1977 on 27th October, 1976 claiming an amount of Rs. 200/- per month by way of maintenance under the provisions of section 125 of the Code of Criminal Procedure. The only contention raised by the respondent husband in those proceedings was that he having lawfully divorced Abedabi, her claim was not sustainable in the eyes of law. He also disputed the quantum of the amount claimed by Abedabi. By an amendment application moved to the said miscellaneous application of 6th December 1977, Abedab added petitioner No. 2 Samir in that application and contended that respondent husband had neglected and refused to maintain Samir, their son, who was born out of lawful wedlock. The respondent husband resisted Samir being added as application No. 2 and contended that Samir was not admitted to any school and the petitioner Abedabi was hardly a competent person to look after and take care of Samir, inasmuch as he was wandering like a vagabond. He denied the allegation of Abedabi that he had neglected or refused to maintain Samir, present respondent No. 2.

6. The only evidence that was led in the trial Court was of petitioner Abedabi and that of respondent Sikandar on behalf of the respective parties. No other witness was examined either in support or in rebuttal of the allegations made by the petitioner.

7. Having scrutinised the evidence of both the petitioner and the respondent, the learned judicial Magistrate, Firs

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