A Muslim wife is not entitled to maintenance under section 125 of the Code of Criminal Procedure, 1973, if she has received the full dower debt before the institution of the case.

V. Mishra, J.

1. This revision application is directed against an order passed in a case under section 125 of the Code of Criminal Procedure, 1973 (hereinafter called the new Code), by Shri S. Upadhay, Sub-divisional Judicial Magistrate patna City, on 10th of June, 1978. By this order, the learned Magistrate has allowed to opposite-party no.1 a sum of Rs.200 by way of maintenance for herself and her minor daughter, opposite party no.2.

2. The admitted position that emerges out after arguments of both the parties in this case is that Sayeeda Khatoon (opposite patty no.1) was divorced by Md. Zafaruddin (petitioner) on 6th of June, 1973 and a deed of talaquenama was also executed. It is further admitted position that at that very time her complete dower-debt was paid to her. This fact finds mention also in paragraphs 19 and 22 of the judgment of the trial court.

3. I have already said above that the learned Magistrate has allowed a sum of Rs.200/- as maintenance, both for wife and daughter. The fact that the petitioner is liable to maintain the daughter is also admitted (vide paragraph 9 of the revision application ). Therefore, the only question now that remains to be decided is whether the petitioner is liable to pay maintenance to his divorced wife, even after paying her the dower debt before the institution of the case itself. For a decision on this point, I may first refer to section 125 of the new Code which says (leaving unnecessary details) that if any person having sufficient means neglects or refuses to maintain his wife, a Magistrate of the first class may order payment of monthly allowance for her maintenance. The word "wife" has been defined in the explanation to this section for the purposes of Chapter xix in which this section finds place. The definition runs as follows : " wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried". This section does not say anything about a wife who has received the dower-debt in accordance with her personal law.

4. I may now turn to section 127 (3) of the new Code which runs as follows:

"where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her, husband, the Magistrate shall if he is satisfied that- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage ; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order- (i) in the case where such sum was paid before such order, from the date on which such order was made ; (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. "

A reading of this section shows that if any woman has been allowed maintenance under section 125 of the new Code, it may be later cancelled, if she has received before or after the said order, the whole of the sum payable to her under any customary or personal law. The fact that opposite party no.1 has received the entire dower debt before the institution of the case is no where in dispute. Thus she has definitely received under her personal law. As the section reads, there may be an order for cancelling the order of maintenance already granted, but a question arises as to why such a stage should be allowed to come where the necessity of cancelling the order may arise. According to the rule of harmonious construction, there does not appear to be any doubt left, that if a Muslim wife has already received the full dower debt before an order under section 125