A divorced wife is entitled to maintenance under Section 125 of the CrPC only if she is unable to maintain herself and if her husband has not paid her the entire 'Mehr' and maintenance amount as per customary or personal law.

Order.- This petition is directed against the order dated 22nd November, 1976 passed by the learned Sessions Judge, Belgaum, in Criminal Revision Application No. 76 of 1975 on his file.

2. The relevant facts necessary to decide the present petition are these:

Smt. Zubedabi instituted an application under section 125 of the Code of Criminal Procedure before the Court of the Judicial Magistrate, First Class. I Court, Belgaum on 12th July, 1974. She alleged that the respondent was her husband and that she was legally married to him on 25th January, 1959 in Khanjar Galli, Belgaum. The parties are Muslims. After the marriage, petitioner resided with her husband in his house in Arlikatti Deshpande Galli, Belgaum. Marriage was consummated. A boy was conceived and he was subsequently born. He was aged more than 14 years at the time of petition. After the marriage of the petitioner with the respondent, the respondent developed illegitimate intimacy with one Shafiya Savanur and he subsequently married her. He was spending most of his time with her to the total neglect of the petitioner. Thereafter, the parents of the respondent told the petitioner to go and stay with her parents. The respondent executed an agreement as per Exhibit P-1 on 10th July, 1965 in favour of the petitioner, agreeing to pay her Rs. 40 per month towards her maintenance. He failed to pay the same since 1973. The petitioner made representation to the Deputy Director of Public Instructions. Being enraged the respondent gave a public notice divorcing the petitioner in ‘Belgaum Samachar’ on 30th of March, 1974. Thus, the petitioner is a divorced wife of the respondent. Petitioner averred in the petition that she had not remarried after the divorce. Hence, she claimed maintenance from her husband under section 125 of the Code of Criminal Procedure at the rate of Rs. 80 per month. Her husband was a High School Teacher and he had sufficient means to maintain the petitioner, but had neglected.

3. The respondent in the petition on entering appearance resisted the claim of the petitioner. He averred that he had given ‘Tallak’ three times to the petitioner in her presence on 18th July, 1959 itself. An agreement as per Exhibit P-1 was obtained from him through coercion. Since the petitioner was challenging the divorce given, he sent the ‘Tallaknama’ by registered letter to the petitioner and the same was refused. Subsequently, he got it published in ‘Belgaum Samachar’ on 30th March, 1974. He further asserted that along with the ‘Tallaknama’ he sent a cheque for Rs. 525 to the petitioner and the maintenance amount for the Iddat period of three months totalling Rs. 120. The same was refused. On this ground he contended that he was not liable to pay the maintenance to the petitioner.

4. The petitioner examined herself as P.W. 1 before the learned Magistrate. She spoke to the petition averments. She examined, in addition. P.W. 2 the Assistant Manager of the Syndicate Bank, Belgaum. He spoke to the ‘fact that the respondent was issuing cheques to the petitioner earlier. P.W. 3 is Mohamadija A. Angolkar, the Head Master of Islamia High School, Belgaum, where respondent is working. He! has spoken to the salary of the respondent and that he was sending cheques at the rate of Rs. 40 per month to his wife the petitioner earlier. P.W. 4 is Mohadinsab. He has spoken about the agreement executed by the respondent in favour of the petitioner. As against this, the respondent examined himself as D.W. 1. He examined one Mohammad Ali as D.W. 2. He is the Manager of the Muslim Co-operative Bank, Belgaum. He has spoken to the fact that the petitioner and her brother mortgaged some properties and raised a loan of Rs. 4,000. In addition to the oral evidence Exhibits P-1 to P-4 were got marked by the petitioner and Exhibits D-1 to D-13 were got marked by the respondent. The learned. Magistrate appreciating the evidence on record, by his order, dated 20th October, 1975 held that the petitioner was entitl

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