Under the Mahomedan Law, for the purposes of maintenance, the relationship of husband and wife would be deemed to subsist and the divorce will be final only after the wife is informed of the divorce.

Anwar Ahmad, J.

1. This application in revision on behalf of Enamul Haque is directed against an order of a Magistrate, first class, Chapra, dated the 9th September 1963, directing him to pay maintenance to his wife Bibi Taimunissa (opposite party) and her two minor daughters, namely. Nasima Khatoon and Sahima Khatoon.

2. On the 21st July 1961, the opposite early filed an application under Section 488 of the ode of Criminal Procedure for her own maintenance at the rate of Rs. 50 per month and for the maintenance of her two minor daughters Nasima and Sahima, aged eight and five years respectively (on the date of the application) at the rate of Rs. 35 per month each.

3. The case of the opposite party was that she was lawfully married to the petitioner eleven years back, but, for the last three years the petitioner was ill treating her. Her further case was that she gave birth to the two daughters as aforesaid. She alleged that, two years back, he mercilessly assaulted her and the two daughters and turned them out of his house. After having been driven out of the house of the petitioner, the opposite party was living with her two daughters at the house of her father at Chapra. She, further, alleged that the petitioner was possessed of sufficient means to pay maintenance to her and her two daughters.

4. The case of the petitioner was that he had already divorced the opposite party on the 22nd February 1961. So far as the two daughters, Nasima and Sahima, are conrerned, he acknowledged that he was their father and offered to maintain them provided they were handed over to him.

5. The learned Magistrate had come to the following findings of fact: (a) that the opposite party was divorced on the 22nd February 1961; (b) that she came to know of the divorce on the 24th July 1963, when the petitioner was examined in Court; and (c) that the means of the petitioner were more than Rs. 50 per month. On these findings, the learned Magistrate has allowed maintenance to the opposite party at the rate of Rs. 25 per month from the 22nd February to the 2nd July 1961, that is, for the period of Iddat, which, according to the learned Magistrate, was four months and ten days. He also allowed maintenance to each of the two minor girls at fee rate of Rs. 15 per month from the 22nd February 1961 up to the age of fourteen years. He, further, held that the mother (opposite party) would be entitled to the custody, of the two minor girls up to the age of fourteen years.

6. Mr. A.N. Chatterji, learned counsel appearing for the petitioner, has contended that no order for maintenance could be passed for a period prior to the date of the application for maintenance, which was the 21st July 1961 and has relied upon Sub-section (2) of Sec. 488 of the Code of Criminal Procedure, which runs as follows :

"Such allowance shall be payable from the date of the order, or if so ordered, from the date of the application for maintenance."

This submission of learned counsel is well founded and is accepted.

7 It was next contended by Mr. Chatterji that the petitioner had no means to pay the maintenance. This point has got no force, because, the learned Magistrate has held, on evidence, that the petitioner has got means of more than Rs. 50 per month.

8. It has been next contended that the petitioner was the legal guardian of his two minor daughters and the learned Magistrate erred in law in holding that the opposite party was entitled to the custody of the two minor girls up to the age of fourteen years.

The law, however, is clear, as laid down in Article 352 of Mullas Mahomedan Law, 15th edition, that the mother is entitled to the custody of her female child until she has attained puberty. Therefore, the learned Magistrate was right in directing that the opposite party was entitled to the custody of her two minor daughters up to the age of fourteen years.

9. The order of the learned Magistrate has also been challenged on the ground that, having held that the opposite