A divorced wife is entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973, even if the divorce took place before the coming into operation of the Code, provided that the 'talaq' was not valid according to Islamic law.

This is an application under Section 401 of the Cede of Criminal Procedure and is directed against an order passed by the Sub-Divisional Judicial Magistrate, Hailakandi, ejecting an application for maintenance filed by the petitioner (wife) under Section 125 of the Criminal Procedure Code, 1973 (hereinafter 'the new Code'). The material facts are these :

2. The petitioner's case is that she was married by the opposite party (husband) about 3 (three) years ago. They lived as husband and wife for about three months whereafter the husband abandoned and neglected her. She was not provided with any maintenance and was passing her days in penury. She prayed for maintenance of Rs. 150/- per month from the husband.

3. The opposite party filed a written statement and con­tested the petitioner's application. He admitted the marriage, but his plea was that he divorced the petitioner on 12.4.1972 by executing a talaqnama. He further pleaded that he paid the dower money to the petitioner.

4. The Magistrate found that petitioner had been divo­rced by the opposite party. He held that as the petitioner had been divorced before the coming into operation of the new Code, she was not entitled to maintenance and he rejected the application. Hence this application in revision.

5. This application came up for hearing before a learned Single Judge of this Court before whom it was conteded by the petitioner, relying on a decision of this Court in Criminal Revision No. 199 of 1977, disposed of on 31.3.78, that there has been no valid talaq, and, as such the petitioner was entitled to maintenance. The opposite party submitted before the Single Judge that the decision of the Single Judge in Criminal Revision No. 199/77 required re-consideration. Although the learned Single Judge concurred with the view expressed in Criminal Revision 199/77, he referred the matter to a Division Bench as substantial questions of law were involved in the case.

6. Section 125 of the new Code provides :

"125. (1) If any person having sufficient means neglects or refuses to maintain-

(a) * *

(b) * *

(c) * *

(d) * *

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of the wife......at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct;

* * * * * * * * *

(relevant provisions only)

"Wife" has been defined in Explanation (b). The defini­tion is in the following words :

"For the proposes of this Chapter (Chapter IX)

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

In the instant case the petitioner filed the application for maintenance on the footing that the marriage was subsisting and that she was the neglected wife of the opposite party, the opposite party having pleaded that she had been divorced.

7. The first point to be decided, therefore, is whether the opposite party divorced the petitioner. The equivalent of the word 'divorce' is 'talaq' in Muslim Law. What is valid 'talaq' in Muslim law was considered by one of us (Baharul Islam. J. as he then was) sitting singly in Criminal Revision No. 199/77 (supra). The word 'talaq' carries the literal significance of 'freeing' or 'the undoing of knot. 'Talaq' means divorce of a woman by her husband. Under the Muslim law marriage is a civil contract. Yet the rights and responsibilities consequent upon it are of such importance to the welfare of the society that a high degree of sanctity is attached to it. But inspite of the sacrcdness of the character of the marriagetic, Islam recognises the necessity in exceptional circumstances of keeping the way open for its dissolution.

There has been a good deal of misconception of the insti­tution of 'talaq' under the Muslim law. From the Holy Quran and the Hadis, it appears that though divorce was permitted, y