The main legal point established is that a divorced Muslim woman is entitled to claim maintenance under Sec. 125 of the Code until the assertion of divorce by the husband, after which the matter has to be determined under the provisions of the Muslim Women (Protection of Rights on Divorce) Act.

N.Rai and Ashok Kumar Verma JJ.

1. The petitioner-husband has filed the present application against the order dated 9-8-1995, passed by the Judicial Magistrate. 1st Class, Muzaffarpur. in Trial No. 4263 of 1995, by which he has allowed the application filed by wife-Opposite Party No. 1 Saira Khatoon and ordered for payment of maintenance of Rs. 400.00 per month for her and Rs. 200.00 each for two children, namely. Mohina Khatoon (Opposite Party No. 2) and Noor Alam (Opposite Party No. 3).

2. The Opposite Party No. 1 filed a petition stating therein that the petitioner was earlier married with the daughter of one Md. Wasi of Village Katai. Later on, he married with Opposite Party No. Ion 18-12-1975 and Rs. 3,000.00 was fixed as the dower debt. After marriage three children were born out of their wedlock out of whom one is also married. They were Jiving peacefully for some time and, thereafter the husband-petitioner started misbehaving with her and stopped giving food to her and her children and in the month of January 1991, the husband-petitioner forcibly drove her out of his house and since then she is living with her parents along with her children. She is unable to maintain herself and her children. Her father approached the husband-petitioner for several times for keeping them but he had not agreed. The husband-petitioner has an income of Rs. 3,000.00 per month, but even then he is not maintaining her and her children. Hence, the application for maintenance.

3. The husband-petition reappeared and filed a show-cause. He admitted his marriage with Opposite Party No. 1 on 18-12-1975 for a deferred dower of Rs. 785/ -. Wife-Opposite Party No. 1 was a lady of questioncible character and was indulged in a loose life and as there was no chance of any improvement then with her consent, he on 2-10-1976 divorced her and paid the deferred dower of Rs. 785.00 and also paid the maintenance, during that period, in regard to which she executed receipt and her mother also executed an Ekramama in respect of divorce and since 2-10-1976, she is not his Wife, she is, not entitled to maintenance under Sec. 125 of the Code of Criminal Procedure (hereinafter referred to as the Code).

4. The opposite parties examined five witnesses in-this case, namely, AW-1 Md. Usman, AW-2 Mahendra Sah, AW-3 Md. Yunus, AW-4 Shaira Khatoon (herself) and AW-5 Hamida Khatoon (daughter of the petitioner and Opposite Party No.1).

5. The petitioner examined three witnesses, namely, OPW1, Md. Jahangir, OPW2, Md. Jubair and OPW3, Abdul Manan (himself). The petitioner also filed two documents, namely, receipt alleged to have been executed by Opposite Party No.1 in token of having received the amount at the time of divorce and Ekramama of divorce executed by the mother of Opposite Party No. 1.

6. The learned Magistrate, after considering the materials on record, came to the conclusion that Opposite Party No. 1 was married with the petitioner in 1976 and the story of divorce as propounded by the husband has not been proved and his wife and children are being neglected and are not being maintained by the husband-petitioner in spite of his having sufficient means to maintain and has ordered for payment of maintenance as stated above.

7. So far as the maintenance of the children is concerned, the same has not been challenged and in our view, rightly as the Magistrate has power to pass an order for maintenance of the children under Sec. 125 of the Code and this controversy has been settled at rest by the Supreme Court in the case of Noor Saba Khatoonv. Mohd. Quasim, wherein the Apex Court has held that the children ate entitled to maintenance for period till they attain majority or are able to maintain themselves. The said right of children is not restricted, affected or controlled, by Sec. 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act (hereinafter referred to as the Act).

8. Learned Counsel for the petitioner has submitted that as the husband has al