Janak Raj Kotwal, J.Question raised in this petition under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure, 1989 (for short, the State Code) is; whether a Muslim divorced wife would be entitled to claim maintenance from her divorced husband under Section 488 of the State Code

2. A few facts, which are relevant, are these:

i) On 3-4-2008, Suriya Begum, herein respondent, filed an application against Riaz Ahmed, herein petitioner, for receiving maintenance allowance from him under Section 488 of the State Code. The petitioner pleaded before the learned Magistrate that respondent is not his wife as their marriage has been dissolved vide a Divorce Deed executed on 6-7-2007. After inquiry the Magistrate disposed of the application vide his order dated 31-10-2011. Learned Magistrate held that factum of divorce having taken place on 6-7-2007 was proved and took up the question as to whether, Muslim divorcee is entitled to claim maintenance from her divorced husband or not. Learned Magistrate relied upon Supreme Court judgment in Shabana Bano v. Imran Khan, AIR 2010 SC 305 : (2010 Cri LJ 521), allowed the application and directed the petitioner to pay monthly maintenance allowance of Rs.2000/- to the respondent. Two paras of the judgment in Shabana Banos case (supra) are quoted by the learned Magistrate in his order, which I reproduce:

27. The appellants petition under section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under section 125 of the Cr.P.C. cannot be restricted for the lddat period only.

29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi and Iqbal Bano cases would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.

ii) Petitioner assailed the order passed by the learned Magistrate in a revision petition before the learned Sessions Judge, Jammu. Learned Sessions Judge however, dismissed the application vide his judgment dated 30-3-2012. There is, however, nothing significant in the judgment rendered by the learned Sessions Judge and it would not be wrong to say that the learned Judge simply dismissed the appeal and upheld the order passed by the Magistrate without discussing the question involved.

3. Mr. M.P. Gupta, learned counsel appearing on behalf of the petitioner argued that subsistence of the marriage is essential for lodging a claim under section 488 of the State Code as a divorced wife is not entitled to maintenance from her divorced husband under this provision of law. Per contra Mr. O.P. Thakur, learned counsel appearing on behalf of the respondent supported the view taken by the learned Magistrate and upheld by the learned Sessions Judge.

4. A significant difference relating to entitlement of a wife to claim and receive maintenance under Section 125 of the Code of Criminal Procedure (for short the Central Code) on one hand and Section 488 of the State Code on the other should be noticed and understood. Under Section 125 of the Central Code as per Explanation (b) to its sub-section (1) wife includes also a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Such a provision, however, is not contained in Section 488 of the State Code. Therefore, whereas under Section 125 of the Central Code even a divorced wife is entitled to lodge as claim for maintenance allowance against her divorced husband, under Section 488 of the State Code a divorced wife is not so entitled. Under Section 488, wife is entitled to claim maintenance from her husband only as long as the marriage from her husband only as long as the marriage is in subsistence and loses this entitlement if the marriage is dissolved. To say in context of the question raised in this petition, a divorced wife is not entitled to receive maintenance allowance from her husband under Section 488 of the State Code. Learned Magistrate, it seems, was oblivious of this basic principle underlying Section 488 and sadly so was the learned Sessions Judge.

5. It may be stated briefly that in the famous Shah Bano Begums case, AIR 1985 SC 945 , Supreme Court has taken the view that althought the Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of Iddat only, she is entitled to have recourse to Section 125 of the Central Code if she is unable to maintain herself after the period of Iddat. As decision in Shah Bano Begums case led to some controversy as to obligation of a Muslim husband to pay maintenance to the divorced wife, Parliament enacted the Muslim Women (Protection of Rights and Divorce) Act, 1986 (for short, the Act) providing for the measures for maintenance of such divorced Muslim women who are unable to maintain themselves. The Constitutional validity of the Act was considered by a Constitution Bench of the Supreme Court in Danial Latifis case (2001) 7 SCC 740 : (AIR 2001 SC 3958 ). Learned Constitution Bench, while upholding the validity of the Act, recorded its conclusions in para 36 of the reporting, which I reproduce:

36. While upholding the validity of the Act, we may sum up our conclusions:

(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the Iddat period must be made by the husband within the Iddat period in terms of Section 3(1) (a) of the Act.

(2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the Iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proposition to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

6. The decision in the Shabana Banos case (AIR 2010 SC 305 ) (supra) relied upon by the learned Magistrate and referred to by the learned Sessions Judge is based on the decision in Danial Latifis case : (AIR 2001 SC 3958 ) and other decisions rendered by the Supreme Court in similar context. The basis of a Muslim divorced wifes entitlement to claim compensation under Section 125 of the Central Code is the meaning given to the term wife-under Exception (b) to Section 125 (1), which extends its scope to a divorced wife also. The ratio of the decision in Danial Latifi and the subsequent decisions in so far as it relates to the entitlement of a Muslim divorced wife to claim maintenance from her divorced husband, therefore, cannot be applied to a case arising under Section 488 of the State Code for the simple reason that, to state at the cost of repetition, the term wife, may it be Hindu or Muslim, as contemplated under Section 488 of the State Code does not mean or include a divorced wife also.

7. I may say as a concluding remark that it is too late in the day for a question regarding entitlement of a divorced wife to claim compensation under Section 488 of the State Code to arise. It is clear from the bare reading of Section 488 of the State Code and has been settled as an elementary principle by various judgments of this Court that a divorced wife is not so entitled and I would say that lack of this elementary knowledge on the part of learned Magistrate as well as learned Sessions Judge has allowed this question to arise and come up to the level of this Court.

8. For all that said and discussed above, this petition is allowed and order passed by the learned Magistrate as also the judgment of the learned Sessions Judge, as they suffer from patent error of law, are set aside and in the result, application under Section 488 of the State Code filed by the respondent stands dismissed.

9. Record of the Court of the learned Magistrate be remitted back along with copy of this order.