M. K. SHAH, J. ( 1 ) THIS revision application is directed against the order passed by the learned Judicial Magistrate First class Dhrangadhra on 3 on Ex. 24 which was an application given by the opponent husband in maintenance proceedings instituted by the wife for herself and the minor sons. The learned Magistrate by the order passed below Ex. 24 allowed the said application on the ground that there were substantial issues in the matter arising between the parties due to the registered divorce deed and he therefore dismissed the wifes maintenance application being Miscellaneous Criminal Application No. 5 of 1977 directing her to approach the civil court. . . . . . . . . . ( 2 ) WHILE the proceedings were pending on 22-5-1978 the husband gave the said application Ex. 24 inter alia contending that at the time when the divorce was obtained by the said deed of divorce the wife had no right of claiming maintenance and the question of neglect or refusal on the part of the husband to maintain would not arise. With regard to the maintenance of the first child Indravadan it was contended that in the deed itself the wife had taken over the responsibility of his maintenance and custody and the husband was not liable for the same as specifically stated therein and she had never asked for any maintenance from 1968 to 1976 thus implementing the deed of divorce add the question of neglect or refusal with regard to maintenance of the said son also did not arise With regard to the second son as the same was born after the divorce the question of his paternity was of importance. The agreement contained in the deed of divorce was of civil nature. Nothing was payable by each party to the other and there was no question of neglect or refusal. Several questions of civil nature would therefore arise with regard to the effect of the deed of divorce viz. with regard to the paternity of the second child with regard to the question as to whether the wife can make an application after a lapse of such long time after the new Code of Criminal procedure came into force as to what was the effect of the position that in the written deed of divorce there was no mention that the wife had conceived. In this view of the matter it was contended that the issues which arise would be of civil nature and the petitioner-wife would have remedy in civil court and the criminal court had a no jurisdiction. ( 3 ) THE learned Magistrate after hearing both the parties came to the conclusion that there were substantial questions of civil nature arising in the proceedings before him and the learned Magistrate allowed the husbands application Ex. 24 and dismissed the wifes maintenance application being Criminal Miscellaneous Application No. 5 of 1977 directing her to go to the civil court. Aggrieved by this order the wife has filed this revision application. ( 4 ) UNDER the new Code of Criminal Procedure as provided in sec. 125 a wife unable to maintain herself or legitimate or illegitimate child (not being a married daughter unable to maintain itself may be granted monthly allowance for the maintenance on proof of the fact that the husband or the father as the case may be having sufficient means neglects or refuses to maintain the applicant. By Explanation it is provided that wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Sub-sec. (3) of sec. 127 further provides that where any order has been made under sec. 125 in favour of a woman who has been divorced by or has obtained a divorce from her husband the Magistrate shall if he is satisfied that:- (A) the woman has after the date of such divorce remarried cancel such order as from the date of her remarriage; (B) the woman has been divorced by her husband and that she has received whether before or after the date of the said order the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce cancel such order; (C) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce cancel the order from the date thereof". THUS all the issue which may arise in the instant petition are issues covered by the aforesaid provisions contained in the Code of Criminal Procedure and the same can be tried by a criminal court entertaining maintenance proceedings. The divorce deed itself does not disentitle the wife from claiming maintenance. THUS all the issue which may arise in the instant petition are issues covered by the aforesaid provisions contained in the Code of Criminal Procedure and the same can be tried by a criminal court entertaining maintenance proceedings. The divorce deed itself does not disentitle the wife from claiming maintenance. So far as the first child is concerned as fairly conceded by Mr. Pandya the learned Advocate for the husband the husband cannot escape his liability because he is bound to maintain him whatever may be the contents of the deed of divorce. By an agreement between husband and wife the rights of the child to be maintained as provided in sec. 125 cannot be jeopardised and therefore so far as the first child is concerned the agreement of divorce will have no effect. So far as the second child is concerned prima facie the same having been born within 280 days of the divorce the paternity has to be presumed unless the contrary is proved. These are all questions which the criminal court will be entitled to go into. ( 5 ) THIS is not a case in the court should refuse to try the case on the ground that the points involved are of a civil nature. That Way the maintenance proceedings themselves are substantially in the nature of civil proceedings. But they provide summary remedy to the wife and other dependents of the husbands and are intended to provide a swift remedy in cases where a wife or a child is deserted by the husband or father and to prevent destitution and starvation of the wife or child when the husband or father is in a position to maintain them. It is true in such proceedings complicated questions of law are not expected to be gone into as in the case of civil slits and ultimately the rights of the parties as may be decided by the civil court in appropriate proceedings will prevail over such question decided by the criminal court but that does not take away the jurisdiction of the criminal court to entertain and try maintenance. proceedings and to decide questions which arise therein. ( 6 ) IN a petition under sec. proceedings and to decide questions which arise therein. ( 6 ) IN a petition under sec. 125 what the court will have to look into is as to whether the wife though divorced is entitled to maintenance or whether she is disentitled to receive the same because of any disqualifications as provided in sec. 125 such as her living in adultery or her refusal to stay with the husband without sufficient cause or the parties living separately by mutual consent. Similarly the question whether the second child is entitled to maintenance can also be looked into by the court and the court can raise a presumption that the said child having been born within 283 days of the divorce is presumed to be a child of the parties and it would then be for the husband to rebut that presumption by bringing material on record destroying such presumption. All these questions can be gone into by the criminal court in maintenance proceedings under sec. 125 of the Code. ( 7 ) MY attention was drawn to Satishchandra Sen Gupta v. Charu Bala Sen Gupta A. I. R. 1962 Tripura 61 where the husband defended the maintenance proceedings on the ground that the wife was not his lawfully wedded wife and the court held that in such proceedings complicated questions of law are not expected to be gone into as in the nature of civil suits to decide whether the marriage spoken to by the witnesses constituted a valid marriage under the personal law of the parties. that will have to be decided if the husband filed a suit for a declaration that the wife to whom maintenance was allowed under sec. 488 of the Criminal Procedure Code was not his legally wedded wife. In a petition under sec. 488 by the wife if the husband denied that she was his married wife all that the court will look into is whether there was a marriage whether the man and woman lived as husband and wife whether the neighbours regarded them as husband and wife whether children were born out of the union and whether the man deserted the woman and children without providing for them. If there was evidence on all these matters there will be a presumption that the woman was a wife and not a concubine and that the children were legitimate children. If there was evidence on all these matters there will be a presumption that the woman was a wife and not a concubine and that the children were legitimate children. ( 8 ) THUS the learned Magistrate was in error in allowing the husbands application Ex. 24 and in summarily dismissing the wifes maintenance petition on the ground that it involved substantial questions of civil nature. Application allowed:- Rule absolute. .