Nagendra Rai, J.

1. The petitioner has challenged the order for payment of maintenance passed under Sec. 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) in favour of his wife opposite party.

2. The petitioner is aggrieved by the order dated 19.6.92 passed by the Judicial Magistrate 1st Class, Gaya in Misc. Case No. 95/89 (Tr. No. 353/92) whereby the petitioner of the said case has been directed to pay maintenance of Rs. 400.00 per month to the wife opposite party Nooraisha Khatoon from 27.9.89, the date of filing of the application and the order dated 16th January, 1993 passed in Cr. Rev. No. 180/92 dismissing the revision application against the said order.

3. The facts giving rise to the present application are that opposite party Nooraisha Khatoon was married with the petitioner on 6.1.83. At the time of marriage Rs. 25,000.00 was spent to fulfil the demand of dowry made by the petitioner. After marriage she went to her husbands house. Thereafter, she went to Calcutta where her husband was employed. She became pregnant and gave birth to a female child at her mothers place. Thereafter, her husband and in law demanded Rs. 25,000.00 and when her mother showed inability to pay the amount she was being neglected and tortured in different ways and her husband threatened to marry with another girl as a result of which she filed a petitioner under Sec. 125 of the Code claiming Rs. 400.00 as maintenance as her husband has sufficient means to pay the same.

4. The petitioner appeared in the Court below and filed show cause wherein he did not deny the factum of marriage but deny the other assertions and allegations made in the petition.

5. Opposite party Nooraisha Khatoon examined three witnesses including herself in support of her case. Her husband (petitioner) also examined two witnesses but did not examine himself as a witness. At the fag end of the case a petition was filed on his behalf by his brother that he has divorced his wife and as such she is not entitled to maintenance in view of the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the Act). The learned Magistrate rejected the aforesaid petition by order dated 20.4.92. The ground for rejection of the said prayer was that during the examination of the witnesses no whisper was made on behalf of the husband petitioner that he has given divorce. This apart the petition filed in the Court was neither signed by the husband petitioner nor by any authorised advocate. The petitioner preferred a Cr. Rev. No. 180/92 against the said order which was heard and dismissed by the Sessions Judge on 19.5.92 and thereafter the impugned order has been passed by the learned Magistrate which has been upheld in revision. Both the original Court as well as the revisional Court did not accept the case of the petitioner that he has divorced his wife opposite party and ordered for payment of maintenance, as stated above.

6. Learned Counsel appearing on behalf of the husband petitioner submitted that as the petitioner has divorced his wife the proceeding under Sec. 125 of the Code is not maintainable and according the direction issued for payment of the maintenance under the said section is vitiated in law. The case should have been considered in terms of the provisions of the Act and the opposite party is only entitled to the maintenance for the period of Iddat from her husband in terms of the provisions contained under Sec. 3 of the Act.

7. The Counsel for the opposite party submitted that the proceeding under Sec. 125 of the Code was maintainable for maintenance even by the divorced wife of a muslirn in case of refusal or neglected by the husband and. her right to claim maintenance under Sec. 125 of the Code is not taken away on curtailed by the provision of the Act.

8. Thus, the question for determination is as to whether an application under Sec. 125 of the Code by a divorced wife for maintenance in case of ref