Order.- This criminal revision is directed against the order of the Chief Judicial Magistrate, Dharwar, in a petition under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), filed by the respondent-1 (Mehrunnisa) granting her maintenance of Rs. 60 per month.

2. Before the learned Magistrate, Mehrunnisa and her son Ismail Khan filed the petition alleging that Mehrunnisa was married with Mohamad Khan Haneef Khan some time in 1954, but soon thereafter the husband started beating the wife and committed other acts of cruelty with the result that Mehrunnisa is staying with her parents. According to the respondents-petitioners, since the petitioner-respondent refused or neglected to maintain them, they were entitled to claim maintenance to the extent of Rs. 300 per mensem as the annual income of the husband was Rs. 12,700. The petitioner-respondent took the plea that Mehrunnisa became unchaste soon after marriage. Therefore, the husband divorced her. As such, according to her personal law, she was not entitled to claim maintenance. It was also stated, inter alia, that the husband was not a person of sufficient means. As such, so much maintenance as claimed by Mehrunnisa could not be awarded to her.

3. The respondent-first petitioner gave her own statement while the husband examined himself and produced one witness. The learned Magistrate considered this evidence and held that the divorce claimed by the husband was not proved. In the alternative, the learned Magistrate considered that even if Mehrunnisa was a divorced wife, she was entitled to claim maintenance under section 125 of the Code. Thereafter the learned Magistrate considered the question as to the means of the husband and awarded Rs. 60 per mensem as maintenance to Mehrunnisa. As regards her son, however, the finding was that he is major and as such could not claim any maintenance. The petitionerrespondent has a grievance against that order and as such he has filed the present revision.

4. It is contended in the foremost by the learned Counsel that section. 125 of the Code could not obviate the inhibition for maintenance provided for in the personal law applicable to Mehrunnisa. He asserted that, admittedly, according to personal law applicable to Mehrunnisa, being a divorced wife she could not claim maintenance beyond the period of ‘iddat’. That being the position, the learned Counsel contended that section 125 of the Code did not create a right in favour of the wife as obviously she was not entitled to maintenance due to divorce which came into effect 20 years ago in 1954.

5. In my opinion, it may not be a correct proposition to state than section 125 of the Code does not create he right to claim maintenance. It may be stated that the Code of Criminal Procedure, essentially deals with the law of procedure in. criminal cases But, its section 125 specifically deals with the order for maintenance of wife, children and parents. Upon proof of neglect or refusal to maintain a wife, child or parent, an application, can be filed before the Magistr?te of the First Class to award such amount of maintenance as he thinks fit which could of course not exceed Rs. 500. When the law provided for the maintenance, it also provided for the category of persons entitled to maintenance. In that category, wife was included. The Explanation appended to section 125 of the Code defines, the wife as including the woman who has been, divorced by or has obtained a divorce from her husband and has not remarried. The expression “who has been divorced by or has obtained a divorce” grammatically means the wife who is divorced in. the past before section 125 of the Code came into force or who has obtained a divorce subsequent to the corning into force of chat section. Thus, under the plain language of the definition, divorce at a stage prior to the coming into force of the section was included. The learned Counsel for the respondent-petitioner thus contended that upon

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