A wife whose marriage has been annulled under Section 12 of the HMA is not entitled to maintenance under Section 125 of the CrPC as she is not a "divorced wife" within the meaning of Explanation (b) to Section 125(1) of the CrPC.

Order :- By this petition filed under S.482 of the Cr. P.C., Krishan Gopal, petitioner herein, is challenging the legality of the order passed on 31st July, 1981, by a Metropolitan Magistrate, Delhi, whereby the learned Magistrate has held that the petition filed by the wife, Smt. Usha Rani, under S.125 of the Cr. P.C. (herein called 'the Code') is maintainable. While dismissing the preliminary objection on behalf of the husband-respondent it has been held that in spite of the fact that the marriage between the parties has been declared a nullity under S.12 of the Hindu Marriage Act (herein called 'the Act'), Usha Rani continues to have the status of a wife and as such she is entitled to ask for maintenance.

2. The case of the husband is that the marriage between the parties could not be consummated as his wife was incapable of sexual intercourse. According to him she is a born eunuch. While declaring the marriage to be a nullity it has been found by the Court of District Judge, Ferozepur, vide judgement passed on 7th Oct., 1980, that Usha Rani in spite of having undergone a vaginal operation, was impotent.

3. Mr. Kalia, counsel for the petitioner, contends that in case of annulment of the marriage on the ground of impotency of the wife under S.12 of the Act, the wife cannot claim to be a divorced wife as envisaged by Explanation (b) to S.125(1) of the Code and, therefore, her application for maintenance under the provisions of S.125 of the Code is not maintainable. The said Explanation reads as follows :-

"Explanation. - For the purposes of this Chapter.

(a) ......................

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

4. The argument is that according to the said Explanation only those Hindu women, who have been divorced by, or have obtained divorce from their husband, under S.13 of the Act, are entitled to an order of maintenance under S.125 of the Code.

5. The contention of the wife, however, is that by decree of annulment under S.12 of the Act her status as a wife does not terminate and, therefore, till she remarries she is to be considered a divorced wife for the purposes of S.125 of the Code. In support of this contention the respondent-wife relies on the provisions of S.25 of the Act. The submission is that permanent alimony could have been granted to her under S.25 of the Act by the District Judge at the time of passing of the decree of annulment or at any time subsequent thereto meaning there by that in spite of the annulment of the marriage her status as a wife continues. As she is entitled to receive maintenance under the personal law she must be presumed to be entitled to that maintenance under the provisions of Sec. 125 of the Code. Reference is made to a decision of the Punjab and Haryana High Court in Gurcharan Kaur v. Sher Singh, 1981 Mat LR 9, wherein it has been held by the said Court that even after annulment of the marriage, the wife continues to have that status and is therefore, entitled to maintenance under S.25 of the Act.

6. There appears to be difference of opinion in the High Courts on the question whether after passing a decree of nullity of marriage, the parties to the marriage answer the description of wife and husband and whether such a wife has locus standi to move an application for maintenance under S.25 of the Act.

7. Be that as it may I am not called upon to answer that question in these proceedings.

8. The question before me is whether such a wife is covered by Explanation (b) to S.125(1) of the Code ?

9. To appreciate the contention of the wife that it is the statutory liability of the husband to maintain her until she remarries as her status continues to be that of a wife, relevant provisions of the Hindu Marriage Act regarding dissolution of marriage may be noticed.

10. Section 11 deals with cases where the marriage is null and void. It provides that a marriage which is bigamous or which contravenes the rul