(1.) -This application by the former husband is directed against an order of the Judicial Magistrate, Godda, allowing in part an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter called the new Code), and directing the petitioner to pay to his former wife Bibi Majida Khatoon (opposite party in this Court) Rs. 75/~ per month for her maintenance.
(2.) Admittedly, the opposite party, Bibi Majida Khatoon, was the legally married wife of the petitioner. The petitioner has three children from her. It is not in dispute that the petitioner divorced the opposite party and the application for maintenance was filed by the former wife after the divorce. It is also not in dispute that the children of the marriage are residing with and are being maintained by the petitioner. According to the former wife, the petitioner took a second wife, started mal-treating her and her children and when she made demands for maintenance for herself and her children, the petitioner divorced her and refused to maintain her though he had sufficient means for the same. The defence of the petitioner was that the opposite party had been divorced in March 1976 and was at liberty to marry elsewhere ; as she was no longer his wife, she was not entitled to any maintenance. The allegations of negligence and refusal to maintain prior to divorce were denied by the petitioner who alleged that he was compelled to divorce her as she had left the village with a man without the consent of the members of his family.
(3.) The learned Magistrate held that the petitioner had divorced his former wife without cogent reasons and that he has married again and there was no material to show that the former wife was living in adultery and, therefore, she was entitled to maintenance. The learned Magistrate, however, held that she was entitled to maintenance only at the rate of Rs. 75/- per month and not at the rate of Rs. 300/- per mouth as claimed by her.