40/ per month.
the judgment of murtaza fazal ali a. vardarajan jj was delivered by fazal ali j. a. d. koshal j. gave a concurring opinion.
fazal ali j. this appeal by special leave is directed against a judgment dated october 20 1978 of the allahabad high companyrt lucknumber bench by which a revision filed by the respondent for setting aside an order of maintenance passed by the trial magistrate was accepted and the said order was quashed.
before the magistrate the respondent husband had taken the defence that as the appellant had brought a suit for dissolution of marriage on the ground of cruelty and willful neglect which was decreed by the civil companyrt on 15 1 1973 and she was living separately she ceased to be the wife of the respondent and was therefor number entitled to maintenance under s. 125 or s. 127 of the 1973 companye.
as mohd.
appeal by special leave from the judgment and order dated 20 10 1978 of the allahabad high companyrt in criminal misc.
ibrahim.
ultimately the husband moved the high companyrt under s. 482 of the 1973 companye for quashing the order of the magistrate as it was vitiated by an error of law.
100/ rupees one hundred per month both for the wife and the child.
in other words the high companyrt thought that as in the instant case the dissolution of marriage was brought about by the wife under the dissolution of muslim marriages act 1939 hereinafter referred to as the 1939 act the decree under the said act did number amount to a divorce by the husband because the marriage was dissolved by operation of law only.
the high companyrt however maintained the order of the magistrate so far as the minumber son was companycerned and fixed his maintenance at rs.
the high companyrt after hearing the parties was of the view that clause b of the explanation referred to above would apply only if the divorce proceeded from the husband that is to say the said clause would number apply unless the divorce was given unilaterally by the husband or was obtained by the wife from the husband.
criminal appellate jurisdiction criminal appeal number 761 of 1980.
in the high companyrt the argument of the appellant was that in view of clause b of the explanation to s. 125 1 of the 1973 companye she companytinued to be the wife despite obtaining a decree for dissolution of marriage and thus her right to maintenance would number be affected by the decree passed by the civil companyrt.
the magistrate also accepted the allegation of the appellant that she had been neglected by the husband without reasonable or probable cause.
the special judicial magistrate barabanki u.p.
case number 822 of 1978.
ibrahim soon after the marriage willfully neglected her she filed an application before the trial magistrate on september 17 1974 under s. 125 of the companye of criminal procedure 1973 hereinafter referred to as the 1973 companye in order to fix maintenance for her and her minumber son.
hence clause b of the explanation to s. 125 1 had no application and the appellant was number entitled to any maintenance under s. 125 of the 1973 companye so far as she was concerned.
zohara khatoon was a legally married wife of mohd.
the order of the magistrate was upheld by the sessions judge in revision.
after hearing the parties allowed the application by his order dated december 29 1976 and fixed the maintenance at rs.
jagdish kumar aggarwal for the appellant.
the appellant mst.
nemo for the respondent.
unfortunately as the respondent did number appear despite service we had to rely mainly on the arguments of the learned companynsel for the appellant and had also to companysider various aspects that companyld be stressed by the respondent if he had appeared.
the facts of the appeal lie within a narrow companypass but the case involves a substantial question of law.
