A divorced Muslim woman can claim maintenance from her husband under Section 125 Cr.P.C. till she does not remarry, even if the period falls beyond the period of Iddat.

P.N. Bakshi, J.

1. AN application under Section 125 Cr.P.C. was filed by Shrimati Sarwarl on 20th October, 1976 claiming maintenance allowance of Rs. 75/- for herself and Rs. 50/- for her minor son against her husband Wahid Khan, on the allegation that she was his legally married wife and the latter had failed to maintain her. Wahid Khan was in military service and was drawing Rs. 400/- per month. The husband contested the claim of Shrimati Sarwari. He pleaded that she had been divorced in 1973 and that Sayeed was not his son. Both the parties led evidence in support of their respective claims. The special Judicial Magistrate, first class, after a consideration of the entire evidence on the record came to the conclusion that Shrimati Sarwari was the legally wedded wife of Wahid Khan, that the latter had failed to maintain her and that Sayeed was the legitimate child of Wahid Khan. On these findings a maintenance allowance of Rs. 125/- per month-Rs. 75/-per month for the wife and Rs. 50/- per month for the minor son-was allowed by the trial court from the date of his order viz. 11th July 1977. Aggrieved thereby a revision was filed before the Sessions Judge, Farrukhabad which had been dismissed on 28th September, 1977. Thereafter the applicant has approached this Court under Section 482 Cr.P.C

2. I have heard counsel for the parties and have also perused the impugned order. It has been argued by the learned counsel for the applicant that Shrimati Sarwari being a divorced Muslim wife is not entitled to any maintenance from her husband beyond the period of Iddat. The argument is tnat the personal law relating to Muslim community is in conflict with Section 127 (3) Cr.P.C. 1973. Section 127 (3) runs as follows;-

127 (3)-Where any order has been made u/Sec. 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that :- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage ; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman. (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof." Under the aforesaid section an order for maintenance passed under Section 125 Cr.P.C. in favour of a woman can be cancelled if the woman has remarried; or she has been divorced and has received the whole sum which she may be entitled to under customary or personal law applicable to the parties, viz, in the instant case would be deferred dower debt. The argument was that Section 127 (3) (a) Cr P.C. is in conflict with the personal law relating to the Muslim community, which only permits payment of the maintenance allowance for the period of Iddat. This argument does not appeal to me at all. Section 127 (3) Cr.P.C. has not in any manner abridged the rights of the Muslim woman to claim maintenance from her husband As a matter of fact, it has granted additional rights to a divorced Muslim woman for receiving maintenance beyond the period of Iddat, till such time as she has not married after her divorce. This additional benefit, to my mind does not conflict at all with the rights which already accrue to her under the Muslim law. A similar view has been expressed by Mr. M. S. Nesargi, J. of the Karna- taka High Court in Umar Hayat Khan v. Mahaboohunnisa, 1976 CrLJ 395. I am in full agreement with the learned Judge of that Court, who has ex