Y. K. SABHARWAL ( 1 ) THE short question for decision in this petition is whether a divorced Muslim women is entitled to grant of maintenance under Section 125 of the Code of Criminal Procedure or not. ( 2 ) IN order to appreciate the question, the facts of the case may be briefly stated. The petitioner and respondent were married and from wedlock three children were bom, namely, one daughter who has since been married and two sons. An application under Section 125 of Code of Criminal Procedure (For short the Code ) was filed by the respondent claiming maintenance, inter-alia, alleging that after his second marriage, the petitioner has started neglecting her and the children. An application was also filed for grant of interim maintenance which was allowed by learned Metropolitan Magistrate. The petitioner was directed to pay to the respondent maintenance at the rate of Rs. 300/- per month with effect from 13th August, 1988 and to continue to pay or deposit future maintenance month by month by 15th of the succeeding month. The revision petition filed by the petitioner against the order of Metropolitan Magistrate was allowed by learned Additional Sessions Judge only to the extent that the maintenance amount was reduced from Rs. 300/- to Rs. 250/- per month. In all other respects the order granting interim maintenance has been upheld in the impugned order made by learned Additional Sessions Judge which is under challenge in this petition. ( 3 ) IN the written statement filed by the petitioner to respondent s application under Section 125 of the Code, the petitioner, inter-alia, pleaded that he had divorced his wife and that in law a divorced muslim women is not entitled to maintenance. On the other hand, the respondent contended that on the date of the filing of the application claiming maintenance under Section 125 of the Code, the marriage was subsisting between the parties and that she came to know about the divorce for first time when the written statement was filed by the husband. The plea of the wife-respondent was that the factum of divorce will have to be enquired into and it cannot be decided without evidence being led in the trial court and till that fact is decided the maintenance should be ordered to be given to her by the petitioner. The plea of the wife-respondent was that the factum of divorce will have to be enquired into and it cannot be decided without evidence being led in the trial court and till that fact is decided the maintenance should be ordered to be given to her by the petitioner. Accepting the said plea the revision petition was dismissed but amount of maintenance was reduced from Rs. 300/- per month to Rs. 250/- per month. ( 4 ) MR. WIG pointing out that the petitioner in his written statement filed in the trial court has pleaded that he had divorced his wife in the year 1988, contends that for deciding application for grant of maintenance the question whether the petitioner had earlier divorced his wife or not as pleaded in the written statement is not relevant and assuming that the petitioner fails to establish that he had divorced his wife as pleaded, a declaration in the written statement made by the petitioner that he had divorced his wife, would operate as a divorce atleast from the date of the written statement. In support of this contention reliance is placed on the decision of Patna High Court in Sheikh Jalil Vs. Bibi Sarfunnissa, 1976 H. L. R. (Patna) Page 811 and of the Andhra Pradesh High Court in Mohammad Ali Vs. Fareedunnisa Begam and another, AIR 1970 Andhra Pradesh 298, holding that where declaration about divorce is made in the written statement in the past, notwithstanding the denial of the wife, the statement of divorce made in the written statement amounts to a declaration of divorce as on the date on which the said statement is made. The case law on this subject has been noticed in these decisions. We are in respectful agreement with the opinion expressed in these decisions. Keeping this in view, we have to examine the legality of the impugned order. ( 5 ) THE Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act ) was enacted with effect from 19th May, 1986. The Act f^ contains only 7 sections. The sections relevant for the decision of the question in hand are sections 3,4,5 and 7, which read as under: - "sec. ( 5 ) THE Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act ) was enacted with effect from 19th May, 1986. The Act f^ contains only 7 sections. The sections relevant for the decision of the question in hand are sections 3,4,5 and 7, which read as under: - "sec. 3: Mahr or other properties of Muslim woman to be given to her at the time of divorce- (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause 9d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. 409 (3) Where an application has been made under sub- section (2) by a divorced woman, the Magistrate may, if he is satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of subjection (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means other former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman. Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) if any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being, heard in defence and the same sentence being 410 imposed according to the provisions of the said Code. Section 4: Order for payment of maintenance: - Notwithstanding anything contained in the foregoing provisions of this Act or in any otherlaw for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself, after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order; Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her; Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such Inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares 411 of those relatives whose shares have been ordered by the Magistrate to be paid such other relatives under the second proviso to sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order. Section 5: Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974- If, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly. Explanation:- For the purposes of this section, "date of the first hearing of the application" means the date fixed in summons for the attendance of the respondent to the application. Sec. 7: Transitional provisions - Every application by a divorced woman under section 125 or under section 127 of the Code of Criminal Procedure, 1973 pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act. " ( 6 ) THE question is whether a divorced Muslim women is entitled to claim maintenance under Section 125 of the Code, after enforcement of the Act. " ( 6 ) THE question is whether a divorced Muslim women is entitled to claim maintenance under Section 125 of the Code, after enforcement of the Act. A bare reading of the aforesaid provisions make it abundantly clear that a Magistrate has no jurisdiction to award maintenance under Section 25 of the Code in favour of divorced muslim women unless an application is filed under Section 3 (2) of the Act and parties exercise option under Section 5 of the Act for being governed by the provisions of Section 125 to 128 of the Code. The question stands concluded by decisions of Madras, Rajasthan, Kerala, Patna and Orissa High Courts. It has been held in these decisions that a muslim husband is not liable to pay maintenance to a muslim women even after divorce under the provisions of Section 125 to Section 128 of the Code in view of the provisions of the Act. (See : Haja Mohammed Vs. Moimoon, 1992 (2) H. L. R. 133 (DB) Madras, Abid Ali Vs. Mst. Raisa Begum 1988 ( 1) Rajasthan Law Reporter 104, Abdul Gaffor Vs. A. V. Pathuma Bibi. 1989 Cr. L. J. 1224, Kerala, Md. Yonus Vs. Bibi Phenkani @ Pasrunnissa 1987 Vol. II, Crimes 241 (Patna), Bizwana Begum Vs. Mottallah, 1989 Cr. L. J. NOC 155 ( Orissa ). ( 7 ) IT is thus clear from the aforesaid discussion that no order for grant of maintenance under Section 125 of the Code in favour of the respondent could be made for the period after filing of the written statement by the petitioner asserting that he had divorced his wife. The respondent would, however, be entitled to receive maintenance at the rate of Rs. 250/- per month from the date of application till filing of the written statement by the petitioner. ( 8 ) ACCORDINGLY, the petition is partly allowed and the impugned orders of the learned Magistrate and of learned Additional Sessions Judge are modified in the terms stated above. We may also clarify that this order would not affect the rights of the respondent to file an application under the provisions of the Act, and if such an application is filed, it will be decided in accordance with law.