Shivanugrah Narain. J.

1. -this application by the former husband is directed against an order of the Judicial Magistrate, Godda, allowing in part an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter called the new Code), and directing the petitioner to pay to his former wife Bibi Majida Khatoon (opposite party in this Court) Rs.75/~ per month for her maintenance.

2. Admittedly, the opposite party, Bibi Majida Khatoon, was the legally married wife of the petitioner. The petitioner has three children from her. It is not in dispute that the petitioner divorced the opposite party and the application for maintenance was filed by the former wife after the divorce. It is also not in dispute that the children of the marriage are residing with and are being maintained by the petitioner. According to the former wife, the petitioner took a second wife, started mal-treating her and her children and when she made demands for maintenance for herself and her children, the petitioner divorced her and refused to maintain her though he had sufficient means for the same. The defence of the petitioner was that the opposite party had been divorced in March 1976 and was at liberty to marry elsewhere ; as she was no longer his wife, she was not entitled to any maintenance. The allegations of negligence and refusal to maintain prior to divorce were denied by the petitioner who alleged that he was compelled to divorce her as she had left the village with a man without the consent of the members of his family.

3. The learned Magistrate held that the petitioner had divorced his former wife without cogent reasons and that he has married again and there was no material to show that the former wife was living in adultery and, therefore, she was entitled to maintenance. The learned Magistrate, however, held that she was entitled to maintenance only at the rate of Rs.75/- per month and not at the rate of Rs.300/- per mouth as claimed by her.

4. The main argument advanced by Shri Deveshwar Pd. Jha, learned counsel for the petitioner, is that as, admittedly, the opposite party had been divorced in March 1976 and the period of iddat had expired on 6.7.76, when the application for maintenance was filed by the former wife, the application for maintenance was not maintainable at her instance as a divorced Muslim wife is, under the Mohammedan law, not entitled to any maintenance after the expiry of the period of iddat. It is true that under the personal law applicable to muslims, in a case where the wife has been informed of the divorce, the wife is entitled to maintenance during the period of iddat only. But the question whether a person is entitled to an order of maintenance under section 125 of the new Code has to be answered with reference to the provisions of section 125. In Nanak Cland V/s. Chandra Kishore Aggarwal (AIR 1970 Supreme Court 446), sikri, J. (as he then was), speaking for the Supreme Court, rejected the argument that in view of the provisions of Chapter III of the Hindu Adoptions and maintenance Act, 1956, no order for maintenance under section 488 of the Code of Criminal Procedure, 1898 (hereinafter called the old Code) could be made and observed as follows :-

"the scope of the two laws is different. Sec.488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. "

(at page 448 of the Report)On a parity of reasoning, it must he held that section 125 of the new Code is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.

5. Sub-section (1) of section 123 which empowers the Magistrate to make an order for maintenance of wife and certain other relations who are unable to maintain themselves, has an explanation appended to it. Explanation (b) thereof runs thus:

"for the purposes of this Chapter,- (b) wife includes a woman who has been divorced by, or has ob