A.N. Banerjee, J.
1. This Rule is directed against an order dated 28-8-75 passed by the learned Judicial Magistrate, Rampuhat, allowing maintenance of Rs. 60/- per month to the opposite party on her filing an application under Section 125 of the Code of Criminal Procedure 1973. It appears that the petitioner and the opposite party who are muslims were married according to the Muslim rites and after some time the petitioner husband divorced the opposite party wife After such divorce the opposite party filed an application under Section 488 of the Code of Criminal Procedure 1898 but that application was rejected because of the absence of any relationship of husband and wife between the parties. Thereafter on 19-4-74 the opposite party filed the present application under Section 125 of the Code of Criminal Procedure claiming maintenance for herself at the rate of Rs. 150/- per month and also for raising the rate of maintenance already granted to their minor child at the rate of Rupees 15/- per month to Rs. 60/- per month. The learned Judicial Magistrate rejected the prayer in so far the increase in the rate of maintenance granted to minor child was concerned on the ground that there could be no two independent prayers in the same application. But he allowed the prayer of the opposite party wife and granted it to her at the rate of Rs. 60/- per month from the date of the filing of the application.
2. It is as against this order of the learned Magistrate the present Rule was obtained.
3. Mrs. J. Nag learned Advocate appearing for the husband petitioner took three-fold abjection. Her first objection was that since the admitted position was that the opposite party had been divorced prior to the coming into operation of the Code of Criminal Procedure 1973 and since no relationship of husband and wife existed between the parties on the date the said Code came into force, the opposite party was not entitled to claim maintenance under Section 125 of the Code. Her second objection was that in granting maintenance for the wife opposite party the Court did not take into consideration the personal laws of the parties and the question whether at the time of the divorce dowry debt has been paid by the husband to the wife. Her third objection was that in the absence of any evidence regarding the income the learned Magistrate was not justified in fixing the rate of the maintenance at Rs. 60/- per month on the sole ground that the husband was an able bodied men.
4. Mr. J. Islam learned Advocate appearing for the wife opposite party contended that since the definition of 'wife' as given in the explanation to subsection (1) of Secion 125 of the new Code includes a woman who had been divorced by the husband but had not re-married the opposite party was entitled to file an application for maintenance under Section 125 of the new Code. Mr. Islam urged further that the learned Magistrate was wrong in thinking that there was no evidence regarding the income or the properties of the husband. Mr. Islam also pointed out that neither in his written objection before the learned Magistrate nor in the application before this Court there is any whisper regarding denmohor debt having been paid or not. Accordingly Mr. Islam submitted that the learned Magistrate did nothing wrong in not considering this aspect of the matter. The first question which arises for determination, therefore, in this application is whether in the circumstances of the case an application under Section 125 of the new Code was maintainable at the instance of the opposite party, Indeed the opposite party was divorced by the petitioner some time before coming into operation of the new Code. It is also true that the opposite party made an unsuccessful attempt to get maintenance from the petitioner by filing an application under Section 488 of the old Code. But in my view that does not debar the opposite party since she is not re-married to claim maintenance from the petitioner in accordance with provisions of Section 125 of the new Code. In the explanation given to Sub-section (1) of Section 125 of the new Code it has been said that for the purpose of Chapter 9 of the new Code 'wife' includes a woman who has been divorced by or has obtained a divorce from her husband and has not re-married. It is, therefore, apparent that a divorced wife unless she re-marries is entitled to claim maintenance in accordance with the provisions of Section 125 of the new Code. I do not agree with the contentions of Mrs. Nag that in order to avail of definition of 'wife' as given in the said explanation the divorce must take place after the new Code has come into force. The new Code has nowhere restricted the definition of 'wife' to that extent. If on the date the new Code comes into force there is a woman who comes within the definition of 'wife' as given in the said explanation to Sub-section (1) of Section 125 of the Code there is no bar to her applying for maintenance under Section 125 of the new Code. I am, therefore, of the view that the application filed by the opposite party under Section 125 of the new Code was maintainable.
5. With regard to the objection of Mrs. Nag regarding the non-consideration of the question whether denmohor debt has been paid or not by the learned Magistrate I may observe that it was rightly pointed out by Mr. Islam that the aforesaid question regarding den mohor debt was not raised either before the trial court or in the application filed in this Court, This being the position the learned Magistrate cannot be blamed for not taking into consideration this aspect of the matter. Again it would be still open to the petitioner to file an application for cancellation of the order made under Section 125 in favour of the opposite party if he can satisfy the Magistrate that the opposite party had received whether before or after the date of the order under Section 125 of the new Code the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce. If the learned Magistrate is satisfied on the said point he can cancel the order under Clause (b) of Sub-section (3) of Section 127 of the new Code.
6. Coming to the question regarding the fixation of the amount of maintenance I would like to point out that the learned Magistrate was wrong when he said that there was no evidence on record regarding the property possessed by the petitioner husbs.nd and that he had no material to form any opinion about his income. If he had cared to look into the evidence on record he would have found that the opposile party had led evidence on the point regarding the income and property of the husband, I do not think however, that the learned Magistrate was wrong in assessing the maintenance at the rate of Its. 60/- per month from the date of the filing of the application that is to say 19-4-74. Thus the objections raised by Mrs. Nag fail.
7. In the result the Rule is discharged.