Judgment

FAZAL ALI, J. (for himself and Varadarajan, J.) :-This appeal by special leave is directed against a judgment dated October 20, 1978 of the Allahabad High Court (Lucknow Bench) by which a revision filed by the respondent for setting aside an order of maintenance passed by the trial Magistrate was accepted and the said order was quashed.

2. The facts of the appeal lie within a narrow compass but the case involves a substantial question of law. Unfortunately, as the respondent did not appear despite service, we had to rely mainly on the arguments of the learned counsel for the appellant and had also to consider various aspects that could be stressed by the respondent if he had appeared. The appellant, Mst. Zohara Khatoon, was a legally married wife of Mohd. Ibrahim. As Mohd. Ibrahim soon after the marriage wilfully neglected her she filed an application before the trial Magistrate on September 17, 1974 under Section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the 1973 Code) in order to fix maintenance for her and her minor son. The Special Judicial Magistrate, Barabanki (U. P.), after hearing the parties, allowed the application by his order dated December 29, 1976 and fixed the maintenance at Rs. 100/- (Rupees one hundred) per month both for the wife and the child. The Magistrate also accepted the allegation of the appellant that she had been neglected by the husband without reasonable or probable cause. The order of the Magistrate was upheld by the Sessions Judge in revision.

3. Before the Magistrate, the respondent-husband had taken the defence that as the appellant had brought a suit for dissolution of marriage on the ground of cruelty and wilful neglect which was decreed by the civil Court on 15-1-1973 and she was living separately, she ceased to be the wife of the respondent and was, therefore, not entitled to maintenance under S. 125 or S. 127 of the 1973 Code. Ultimately, the husband moved the High Court under S. 482 of the 1973 Code for quashing the order of the Magistrate as it was vitiated by an error of law.

4. In the High Court the argument of the appellant was that in view of cl. (b) of the Explanation to S. 125 (1) of the 1973 Code, she continued to be the wife, despite obtaining a decree for, dissolution of marriage and thus her right to maintenance would not be affected by the decree passed by the civil Court. The High Court after hearing the parties was of the view that clause (b) of the Explanation referred to above would apply only if the divorce proceeded from the husband, that is to say, the said clause would not apply unless the divorce was given unilaterally, by the husband or was obtained by the wife from the husband. In other words, the High Court thought that as, in the instant case, the dissolution of marriage was brought about by the wife under the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as the 1939 Act) the decree under the said Act did not amount to a divorce by the husband because the marriage was dissolved by operation of law only. Hence cl. (b) of the Explanation to S. 125 (1) had no application and the appellant was not entitled to any maintenance under S. 125 of the 1973 Code, so far as she was concerned. The High Court, however, maintained the order of the Magistrate so far as the minor son was concerned and fixed his maintenance at Rs. 40/- per month.

5. The learned counsel for the appellant submitted before us that the view taken by the High Court is legally erroneous and is based on a wrong interpretation of clause (b) of the Explanation to S. 125 (1) of the 1973 Code. After having gone through the various provisions of the 1973 Code, particularly Ss. 125 and 127 we are satisfied that the contentions raised by the counsel for the appellant are well founded and must prevail.

6. In order to decide the issue in question it may be necessary to give a brief survey of the corresponding provisions of the Code of Criminal Procedure, 1898 (he