JUDGMENT
S.L. Kochar, J.
1. This revision has been filed by the applicant/husband against the order dated 16.4.2002 passed by learned Additional Sessions Judge, Khachrod, District Ujjain in Criminal Revision No. 3/2002 setting aside the order passed by the learned Judicial Magistrate, 1st Class Khachrod, in Criminal Case No. 24/2001 on 18th September, 2001.
2. For disposal of this revision, the facts in short before the Courts below was that the applicant and non-applicant were legally wedded husband and wife. After marriage, the applicant started ill-treatment with non-applicant/wife. She was also turned out of the house. Therefore, non-applicant/wife submitted an application for grant of maintenance in her favour under Section 125 of the Code of Criminal Procedure (for short, ‘the Code’)- She has also filed an application for fixing interim maintenance till final disposal of the main application.
3. Applicant/husband, on his appearance submitted the reply controverting the allegations levelled by the wife in her application. He submitted that he did not ill-treat her. According to him, he had given divorce to the non-applicant/ wife. Therefore, she is entitled to maintenance up to the period of ‘Iddat’. He has also submitted that the application under Section 125 of the Code filed by wife, was not maintainable. Learned Trial Court, by order dated 18.9.2001, held that parties are Muslims and according to the husband he had divorced his Wife/non-applicant, therefore, she is only entitled to get maintenance from the date of divorce i.e. 21.3.2001, till the period of Iddat’. Learned Trial Court, fixed the maintenance for the period at the rate of Rs. 2,000/- per month and the total calculated amount was Rs. 8,667/-. According to the Trial Court, non-applicant/wife entitled only for this much amount and no other maintenance can be fixed in her favour for future.
4. Aggrieved by this order, non-applicant/wife went up in revision and learned Revisional Court relying on the Supreme Court judgments passed in the case of Denial Latif v. Union of India, IV (2001) CCR 81, and Julka Begam v. Abdul Rahman, II (2000) DMC 99, held that divorced wife is also entitled for maintenance and set aside the order passed by the Trial Court confining the right only up to the period of ‘Iddat’ from the date of divorce. Learned Revisional Court has fixed the interim maintenance amount payable at the rate of Rs. 2,000/- per month till final disposal of the application under Section 125 of the Code.
5. Having heard learned Counsel for the parties and after perusing the record of the Trial Court, this Court is of the opinion that learned Trial Court has erred in holding that non-applicant/wife was a divorcee because this was the contention of the husband and the same has not been admitted by the wife. Therefore, during the inquiry of this application, this fact has to be decided as per definition defined in Sub-section (a) of Section 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Whether she was given divorce by her husband in accordance with Muslim Law. The order of the learned Trial Court is reflecting that the parties have admitted about the fact of divorce which is not correct. This is a matter of controversy between wife and husband and the same can be resolved by the Trial Court after recording evidence in an inquiry. If in an inquiry the Trial Court finds that there was a divorce between the parties in accordance with Muslim Law at that juncture wife will be entitled for the maintenance from the date of divorce till the period of ‘Iddat’ and not, for further period i.e. till her second marriage, death or she would be able to maintain herself, as per provision under Section 125 of the Code.
6. The learned Revisional Court has erred in taking recourse of the case of Denial Latif (supra), for grant of maintenance under Section 125 of the Code. The Supreme Court in this judgment has considered the constitutional validity of Sections 3 and 4 of Act and held that Muslim divorced wife has also a right to get maintenance from her husband, relations, etc. till her re-marriage, death, or she would be able to maintain herself under the provisions of Sections 3, 4 and 5 of the Act. The Supreme Court in this case, has not ruled that divorced wife is entitled to get maintenance under Section 125 of the Code. .
7. In the light of the aforesaid factual and legal analysis, order of the learned Revisional Court is modified to the extent that non-applicant/wife is entitled for interim maintenance during the period of inquiry of the application filed under Section 125 of the Code and if in an inquiry, husband is able to establish that he has given divorce to his wife in accordance with Muslim Law In that case, wife will not entitle to get maintenance under Section 125 of the Code till her re-marriage, death or she would be able to maintain herself and for this purpose she will have to recourse under the Provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
8. With the modification as indicated above, this revision stands disposed of.