JUDGMENT

Dr. ARIJIT PASAYAT, J. — In the present appeal the appellant questions correctness of the order passed by a learned Single Judge of the Allahabad High Court dismissing her revision peti¬tion (Criminal Revision No. 1161 of 1995). The appellant had questioned correctness of the order passed by the learned Additional Sessions Judge, Aligarh, setting aside the order dated 7.7.1994 passed by the learned Judicial Magistrate, Aligarh. By the said order dated 7.7.1994 the learned Judicial Magistrate had accepted the prayer for grant of maintenance filed by the appellant in terms of Section 125 of the Code of Criminal Proce¬dure, 1973 (in short “CrPC”). She directed Respondent 2 to pay a monthly maintenance of Rs. 450 to the appellant.

2. Background facts in a nutshell are as follows :

The appellant had married Respondent 2 in the year 1959 and a child was born to them in 1966. Unfortunately, the son died in the year 1991. Respondent 2 who was living separately from the appellant stopped coming to the house of the appellant where she was staying and also did not pay anything for her subsistence. Therefore, an application under Section 125 CrPC was filed on 21.2.1992. Before that she had sent notice demanding payment of maintenance. Respondent 2 replied to the notice and denied his liability to pay maintenance. As noted above, on 21.2.1992 application was filed claiming maintenance of Rs. 500 p.m. It was stated that the income of Respondent 2 was Rs. 4000 per month. On 28.5.1992 written statement was filed wherein it was stated that long back he had divorced his wife by utterance of the words “talaq” “talaq" "talaq". It was further stated that there was severance of marital ties between them for years as the divorce was over by the utterance of the word “talaq” thrice and he had also paid mehr and as the iddat period was over the claim was not acceptable. He also stated that he had contracted a second mar¬riage.

3. The learned Magistrate held that there was no material to substantiate the plea of divorce and accordingly maintenance was granted. Order was challenged by filing a revision before the learned Additional Sessions Judge. Stand of the respondent was that after enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (in short “the Act”), petition under Section 125 CrPC was not maintainable. It was also stated that not only in the reply to the notice, was there mention about the utterance of the words “talaq” “talaq” “talaq”, there was mention in the written statement also, amounting to divorce. Learned Additional District and Sessions Judge accepted the plea. He held that after the enactment of the Act, petition by any married Muslim Women under Section 125 CrPC is not maintainable. Such woman can claim maintenance under the Act and not under CrPC. It was further held that mention was made in the written statement about the divorce purportedly 30 years back and the mentioning about this fact in law amounted to divorce. Accordingly, order of the learned Magis¬trate was set aside. The High Court dismissed the writ petition summarily and observed as follows :

“Heard learned counsel for the revisionist.

The learned Additional District and Sessions Judge has committed no illegality in modifying the order passed by the Magistrate in declining the maintenance after the date of di¬vorce.

The revision has got no force. It is dismissed accord¬ingly."

4. Learned counsel for the appellant submitted that the approach of the First Revisional Court was clearly erroneous. There is no bar on a Muslim woman filing petition in terms of Section 125 CrPC. The Act only applies to divorced women and not married Muslim women who are not divorced. Further, mere statement in the written statement about some divorce long back does not meet the requirement of law. The finding of the First Revisional Court about payment of mehr has no relevance.

5. Mr. S.W.A.Quadri, learned counsel for the State of Uttar Pradesh brought to our