ORDER
Bakhshish Kaur, J.
1. Smt. Sarbari wife of Suleman and Unas @ Naushad, minor son of Suleman, filed an application under Section 125, Code of Criminal Procedure, against Suleman for interim main-tenance. Both were allowed interim maintenance @ Rs. 200/- per month and Rs. 150/- per month respectively from the date of application as per order, Annexure P-3. Suleman aggrieved by that order preferred a revision petition, which was partly accepted by the learned Additional Sessions Judge, vide Annexure P-1. The interim maintenance allowed to Smt. Sarbari was restricted to a period of three months only. Aggrieved by that order, Smt. Sarbari has challenged the impugned order (Annexure P-1).
2. I have heard Mr. S.S. Dinarpur, the learned Counsel for the petitioners and Mr. Satish Chaudhary, the learned Counsel, representing the respondent.
3. The case set up by Suleman is that he had already divorced his wife Smt. Sarbari. Therefore, she is not entitled to maintenance.
4. The learned Additional Sessions Judge, thus, relying on Wahab Ali v. Qamro Bi and Ors., AIR (38) 1951 Hyderabad 117, came to the conclusion that Smt. Sarbari is entitled to maintenance only for the Iddat and not for the other period, as allowed by the learned Magistrate.
5. The contention put forth by Mr. S.S. Dinarpur, the learned Counsel for the petitioners, is that the findings of the learned Additional Sessions Judge are based on surmises and conjectures, which are in violation of Muslim Women (Protection of Rights on Divorce) Act/1986 (hereinafter referred to as 'the Act'). The case of the petitioner cannot be restricted under the Act as the petitioners had applied for grant of maintenance under Section 125, Code of Criminal Procedure. The learned Counsel further contended that even if it is taken that the petitioner is a divorced Muslim wife, even then there is no relation to the Iddat period, because until and unless she remarried she is entitled to the interim maintenance during the pendency of the proceedings under Section 125, Code of Criminal Procedure.
6. On the contrary, Mr. Satish Chaudhary, the learned Counsel for the respondent, has contended that the petitioner No. 1 being a divorced wife is not entitled to any claim whatsoever, not even to the interim maintenance, as she is not governed - nor her case is covered under Section 125, Code of Criminal Procedure.
7. I have considered the rival contentions put forth by the learned Counsel for the parties. Mere taking up a plea in the written statements mat the respondent had divorced his wife i.e., the petitioner No. 1, would not ipso facto prove the factum of divorce. Unless the divorce is proved, the Act will not apply. In this connection, reliance has been placed on Mangtu @ Salim v. Noor Jahan, 1997(3) RCR (Cri.) 277.
8. The provision of Section 3 of the Act is quite clear as it is restricted therein that a divorced wife is entitled to maintenance only for a period of Iddat besides other amount. Similarly Section 5 of the Act further clarifies whether divorced woman is unable to maintain herself or she has no source to maintain her can be directed to be paid maintenance by the State Wakf Board. Thus, it is abundantly clear that Act would come into play if there is divorce and as already indicated above, the parties are yet to lead evidence to prove the fact whether the divorce had taken place or not. In a Full Bench authority of this Court reported as Kaka v. Hassan Bono, 1998(1) RCR 484, it has been held that claim of maintenance by a divorced Muslim wife under the provisions of Section 3 of the Act cannot be restricted to the period of 'Iddat'. If it is to be restricted to the period of Iddat, husband has to show that he has made and paid a reasonable and fair provision and maintenance to the wife which is an adequate provision for her life or till she re-marries.
9. The Hon'ble Apex Court is an oft quoted authority, reported as Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. clearly enunciated the principles that statutory law available to the divorced Muslim woman, who would be wife as long as she does not marry, for the purpose of Section 125 of the Code of Criminal Procedure and her right to maintain would not be adversely affected by the provisions of personal law applicable to her. Thus, in these premises, the impugned order cannot be sustained, rather it would amount to the abuse of the process of the Court.
10. For the reasons aforesaid, this petition is accepted. The impugned order, Annexure P-l passed by the learned Additional Sessions Judge is hereby quashed so far as it relates to declining the interim maintenance to Smt. Sarbari and the impugned order, Annexure P-3, passed by the learned Judicial Magistrate, is hereby affirmed.
The parties are directed to appear before the Trial Court on December, 20, 1999.