N. Pandey, J.

This is an application for setting aside an order dated 10.6. 87 passed in trial no. 1418/ 85 by the Judicial Magistrate, Sikrahana at Mutihari.

2. The opposite party happens to be the wife of the petitioner filed a petition under section 125 of the Code of Criminal Procedure, 1973, on 13.11.85 in the court of Sub-divisional Judicial Magistrate, Sikarahana at Motihari, claiming maintenance of Rs.650 per month for herself and her son. She has claimed to be the legally wedded wife of the petitioner and has also got a son. It has been alleged in the petition that she and her son are not being maintained rather neglected by the petitioner. The opposite party has also alleged that the petitioner has contracted another marriage.

3. The petitioner filed his written statement on 28.2.86 and contradicted the allegation made in the petition filed under section 125 of the Code of Criminal Procedure. In paragraph I3 of the written statement the petitioner stated that he had divorced the opposite party. In the written statement it was further stated that the child does not belong to the petitioner and, therefore, he was not obliged to pay any maintenance to the opposite party and her son.

4. It appears from the order sheet of the lower court that on several dates the parties got adjournments on the plea that they would enter into compromise; but ultimately the compromise could not arrive at. Thereafter, the petitioner raised preliminary objection with regard to the maintainability of the proceeding itself on the plea that the opposite party is a divorced muslim woman and, therefore, no proceeding under sections 125 or 127 of the Code of Criminal Procedure, 1973 can lie. According to the petitioner, the opposite party being a divorced woman has got her remedy under "The Muslim Women (Protection of Rights on Divorce) Act, 1986."

5. By the impugned order learned Magistrate after hearing the parties held that in the written statement the petitioner has not been able to give the date when the divorce took place nor the place of divorce has been mentioned. Even the name of the witnesses before whom the divorce took place has not been mentioned. In that view of the matter, he held that the petitioner could not prove that he had divorced the opposite party. According to him The Muslim Women (Protection of Rights on Divorce) Act, 1986 gives only protection to the divorced muslim women. As the petitioner could not prove the divorce, therefore, the present proceeding would continue as per the provision of section 125 of the Code of Criminal Procedure. The present re vision petition has been filed against the aforesaid order.

6. The learned counsel appearing for the petitioner submitted that the learned Magistrate has erred in law in holding that the petitioner could not prove that he had divorced the opposite party. According to him even if no date of divorce was mentioned in the written statement, it was incumbent upon the court below to accept the date of divorce from the date of the written statement. In other words the written statement in the present case was filed on 28.2.86 and therefore, in any case the divorce would be effective from the date of filing of the written statement. The learned counsel further submitted that the moment it is held that the opposite party is a divorced woman, the present proceeding under section 125 of the Criminal Procedure Code shall have to be disposed of in accordance with the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

7. Learned counsel appearing for the opposite party submitted that the statement made with regard to the alleged divorce in the show-cause should not be treated to be a declaration by the petitioner for divorce. The statement is very cryptic and has been made only in order to defeat the provisions of section 125 of the Code of Criminal Procedure. He has further submitted that in the petition under section 125 of the Code of Criminal Procedure the op