Section 125 of the CrPC overrides personal law, including Muslim personal law, and a divorced wife, including one divorced by Khulanama, is entitled to maintenance under Section 125 if she is unable to maintain herself.

JUDGMENT - S.W. PURANIK, J.:---The applicant wife had instituted proceedings against her husband non-applicant No. 1 Babbu Khan under section 125 of Criminal Procedure Code claiming maintenance from him on the ground that he has refused and neglected to maintain her after divorce and that she was unable to earn her own livelihood.

2. Non-applicant husband contested the proceedings on the ground that there was no ill-treatment meted out to her, that she had voluntarily deserted the husband and that on going to her parent's house she had sent a letter dated 30th October, 1981 whereby she herself demanded a divorce in the form of Khullanama after waiving her claim for dower money and for future maintenance. The non-applicant, therefore, contended that it was in response to her demand that he issued talaqnama dated 3-11-1981 giving her irrevocable divorce. According to the non-applicant therefore, the applicant wife was living separate of her own accord and had waived her right to mehar amount and maintenance. She was, therefore, not entitled to claim maintenance under section 125 Criminal Procedure Code.

3. The proceedings before the trial Court were registered as Criminal Case No. 39 of 1981 on the file of Judicial Magistrate, First Class, Nagpur and by his decision dated 13-5-1983, he allowed the application of the wife and directed the husband to pay a sum of Rs. 200/- per month as maintenance.

4. The non-applicant husband preferred Criminal Revision No. 564 of 1983 before the Additional Sessions Judge, Nagpur. The said revision was allowed by the Sessions Judge on 13-9-1984 and the order awarding maintenance was set aside. Being aggrieved by this order in revision, the original applicant-wife has preferred this revision.

5. Shri S. Ziauddin, Advocate, appears for the applicant-wife, the non-applicant No. 1 husband is represented by Shri M.H. Rizwy and Shri M.M. Gadkari, Asstt. Public Prosecutor, appears for non-applicant No. 2 State. With the assistance of the Counsel of both the parties, I have gone through the records and papers of the case as well as the impugned judgment of the Sessions Judge that of the trial Judge.

6. It was contended on behalf of the applicant that admittedly, the wife has been divorced on 3-11-1981 by the husband. The allegation that it was in respondent the Khullanama sent by the wife, is denied. According to her, her signature was obtained on a blank paper by the husband by deceit and that blank paper has been used to type out the Khulanama dated 30-10-1981 (Ex. 13). According to her, the talaq given by the husband is unilateral and irrevocable. It was also contended that section 125 Criminal Procedure Code overrides personal law in view of Explanation (b) to section 125(1) of the Code, which defines 'wife' as including a 'divorced wife'. It does not contain any word of limitation to justify the exclusion of Muslim women from its course. Shri Ziauddin urged that the learned Sessions Judge, while allowing the husband's revision, has only considered the alleged khulanama as the basis to refuse the grant of maintenance to the wife.

7. On behalf of the husband, Shri Rizwy, Advocate, submitted that the trial Court has arrived at a finding that no cruelty, refusal or neglect has been proved by the wife against the husband. It, however, found that the Khuallanama agreement (Ex. 13) sent by the wife, appears to have been issued by her or that the contents were not written by her. That burden, she has not discharged. The trial Court, however, found that the wife being a divorcee and section 125 overrides the personal law even if it was a divorce by Khullanama, she was entitled to maintenance as she was unable to maintain herself. According to Shri Rizwy, the order of the Sessions Judge that Exhibit 13 is duly proved and even though it may be a voidable document, the Criminal Court will hold the same to be valid till it is set aside by regular Civil Court. Shri Rizwy, however, fairly conceded that section 125 Cri

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