The central legal point established in the judgment is that a divorced wife is not entitled to claim maintenance from her husband under Section 488 of the Jammu and Kashmir Code of Criminal Procedure, 1989.

Janak Raj Kotwal, J.

Question raised in this petition under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure, 1989 (for short, the State Code) is; whether a Muslim divorced wife would be entitled to claim maintenance from her divorced husband under Section 488 of the State Code?

2. A few facts, which are relevant, are these :

(i) On 3-4-2008, Suriya Begum, herein respondent, filed an application against Riaz Ahmed, herein petitioner, for receiving maintenance allowance from him under Section 488 of the State Code. The petitioner pleaded before the learned Magistrate that respondent is not his wife as their marriage has been dissolved vide a Divorce Deed executed on 6-7-2007. After inquiry the Magistrate disposed of the application vide his order dated 31-10-2011. Learned Magistrate held that factum of divorce having taken place on 6-7-2007 was proved and took up the question as to whether, 'Muslim divorcee is entitled to claim maintenance from her divorced husband or not.' Learned Magistrate relied upon Supreme Court judgment in Shabana Bano v. Imran Khan, AIR 2010 SC 305 : (2010 Cri LJ 521), allowed the application and directed the petitioner to pay monthly maintenance allowance of Rs.2000/- to the respondent. Two paras of the judgment in Shabana Bano's case (supra) are quoted by the learned Magistrate in his order, which I reproduce:

'27. The appellant's petition under section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under section 125 of the Cr.P.C. cannot be restricted for the lddat period only.'

'29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi and Iqbal Bano cases would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.'

(ii) Petitioner assailed the order passed by the learned Magistrate in a revision petition before the learned Sessions Judge, Jammu. Learned Sessions Judge however, dismissed the application vide his judgment dated 30-3-2012. There is, however, nothing significant in the judgment rendered by the learned Sessions Judge and it would not be wrong to say that the learned Judge simply dismissed the appeal and upheld the order passed by the Magistrate without discussing the question involved.

3. Mr. M.P. Gupta, learned counsel appearing on behalf of the petitioner argued that subsistence of the marriage is essential for lodging a claim under section 488 of the State Code as a divorced wife is not entitled to maintenance from her divorced husband under this provision of law. Per contra Mr. O.P. Thakur, learned counsel appearing on behalf of the respondent supported the view taken by the learned Magistrate and upheld by the learned Sessions Judge.

4. A significant difference relating to entitlement of a wife to claim and receive maintenance under Section 125 of the Code of Criminal Procedure (for short the Central Code) on one hand and Section 488 of the State Code on the other should be noticed and understood. Under Section 125 of the Central Code as per Explanation (b) to its sub-section (1) wife includes also ' a woman who has been divorced by or has obtained a divorce from her husband and has not remarried.' Such a provision, however, is not contained in Section 488 of the State Code. Therefore, whereas under Section 125 of the Central Code even a divorced wife is entitled to lodge as claim for maintenance allowance against her divorced husband, under Section 488 of the State Code a divorced wife is not so entitled. Under Section 488, wife is entitled to claim maintenance from her husband only as long as the marriage from her husband only as long as the marriage is in subsistence and loses this entitlement if the marriage is dissolved. To say