Anwar Ahmad, J.

1. This application in revision on behalf of Enamul Haque is directed against an order of a Magistrate, first class, Chapra, dated the 9th September 1963, directing him to pay maintenance to his wife Bibi Taimunissa (opposite party) and her two minor daughters, namely. Nasima Khatoon and Sahima Khatoon.

2. On the 21st July 1961, the opposite early filed an application under Section 488 of the ode of Criminal Procedure for her own maintenance at the rate of Rs. 50 per month and for the maintenance of her two minor daughters Nasima and Sahima, aged eight and five years respectively (on the date of the application) at the rate of Rs. 35 per month each.

3. The case of the opposite party was that she was lawfully married to the petitioner eleven years back, but, for the last three years the petitioner was ill treating her. Her further case was that she gave birth to the two daughters as aforesaid. She alleged that, two years back, he mercilessly assaulted her and the two daughters and turned them out of his house. After having been driven out of the house of the petitioner, the opposite party was living with her two daughters at the house of her father at Chapra. She, further, alleged that the petitioner was possessed of sufficient means to pay maintenance to her and her two daughters.

4. The case of the petitioner was that he had already divorced the opposite party on the 22nd February 1961. So far as the two daughters, Nasima and Sahima, are conrerned, he acknowledged that he was their father and offered to maintain them provided they were handed over to him.

5. The learned Magistrate had come to the following findings of fact: (a) that the opposite party was divorced on the 22nd February 1961; (b) that she came to know of the divorce on the 24th July 1963, when the petitioner was examined in Court; and (c) that the means of the petitioner were more than Rs. 50 per month. On these findings, the learned Magistrate has allowed maintenance to the opposite party at the rate of Rs. 25 per month from the 22nd February to the 2nd July 1961, that is, for the period of Iddat, which, according to the learned Magistrate, was four months and ten days. He also allowed maintenance to each of the two minor girls at fee rate of Rs. 15 per month from the 22nd February 1961 up to the age of fourteen years. He, further, held that the mother (opposite party) would be entitled to the custody, of the two minor girls up to the age of fourteen years.

6. Mr. A.N. Chatterji, learned counsel appearing for the petitioner, has contended that no order for maintenance could be passed for a period prior to the date of the application for maintenance, which was the 21st July 1961 and has relied upon Sub-section (2) of Section 488 of the Code of Criminal Procedure, which runs as follows :

"Such allowance shall be payable from the date of the order, or if so ordered, from the date of the application for maintenance."

This submission of learned counsel is well founded and is accepted.

7. It was next contended by Mr. Chatterji that the petitioner had no means to pay the maintenance. This point has got no force, because, the learned Magistrate has held, on evidence, that the petitioner has got means of more than Rs. 50 per month.

8. It has been next contended that the petitioner was the legal guardian of his two minor daughters and the learned Magistrate erred in law in holding that the opposite party was entitled to the custody of the two minor girls up to the age of fourteen years.

The law, however, is clear, as laid down in Article 352 of Mullas Mahomedan Law, 15th edition, that the mother is entitled to the custody of her female child until she has attained puberty. Therefore, the learned Magistrate was right in directing that the opposite party was entitled to the custody of her two minor daughters up to the age of fourteen years.

9. The order of the learned Magistrate has also been challenged on the ground that, having held that the opposite party was divorced on the 22nd February, 1961, he erred in law in holding that the same would not be operative till the 24th July, 1963, when the petitioner was examined in court and the opposite party came to know the divorce. As already stated, the petition under Section 488 of the Code of Criminal Procedure was filed on the 21st July, 1961, and the written statement was filed by the husband on the 7th October, 1961. To my mind the learned Magistrate has erred in law in holding that although the parties were fighting in court and a written statement was filed by the husband on the 7th October, 1961, in paragraph 11 of which divorce oil the 22nd February, 1961 has been pleaded, the opposite party would not be saddled with the knowledge of the divorce.

In this connection reference may be made to Chandbi v. Bandesha : AIR 1961 Bom 121 [LQ/BomHC/1960/98] , Wahab Ali v. Qamro Bi. AIR 1951 Hyd 117 and Asmat Ullah v. Mt. Khatun Unnissa : AIR 1939 All 592 [LQ/AllHC/1939/85] . In all these cases although the factum of divorce was not proved by the husband, the wife was saddled with the knowledge of divorce from the date of the filing of the written statement by the husband in the maintenance proceeding. Following the above decisions, it must be held that although there is a finding in the instant case, by the learned Magistrate that the divorce was pronounced by the husband on the 22nd February 1961, the wife would be saddled with the knowledge of the divorce on the 7th October, 1961, when the written statement was filed in court by the husband. Under the Mahomaden Law, for the purposes of maintenance, whether it is claimed in an application under Section 488 of the Code of Criminal Procedure or by a regular suit, the relationship of husband and wife would be deemed to subsist and the divorce will be final only after the wife is informed of the divorce.

A reference may be made to M.M. Abdul Khader v. Azeeza Bee : AIR 1944 Mad 227 [LQ/MadHC/1943/260] . It has been held in that case following earlier decisions, that, under the Mahomedan Law, the husband can declare a valid Talak in the absence of the wife: but, before it can be acted upon, it must be communicated to the wife. Hence, where the wife came to know of the Talak given by the husband, it should be deemed to have come into effect on that date. This case, however, does not take into consideration the period of Iddat, which is three months and not four months and ten days, as held by the learned Magistrate (vide Article 257, Clause (2). Mullas Mahomedan Law, 15th edition). In the instant case, therefore, the opposite party will be entitled to maintenance from the 7th October 1961 to the 7th January 1962, and the order of the learned Magistrate allowing her maintenance will stand modified accordingly.

10. To sum up, therefore, the opposite party will be entitled to her maintenance at the rate of Rs. 25 per month from the 7th October 1961 up to the 7th January 1962 and the maintenance of the two minor daughters will be payable at the rate of Rs. 15 each per month from the 2lsl July 1961, the date on which the opposite party filed her petition under Section 488 of the Code of Criminal Procedure, up to the date when they attain the age of fourteen years.

11. For the reasons stated above, the application is dismissed subject to the modifications indicated above.