Code of Criminal Procedure, 1973-S. 127(3) (b ) - Scope of - Wife divorced by the husband and was granted mehar in 1962 - Wife claimed maintenance from husband under s. 125, Cr.P.C. 1973 - lf could claim - "under any customary or personal law" - Meaning of.

Explanation (b) to s. 125(1) of the Code of Criminal Procedure. 1973 provides that "wife" includes a woman who has been divorced by or has obtained a divorce from her husband and has not re-married. Section 127(3) (b) provides that where any order has been made under s. 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 the woman has been divorced by her husband and 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 in the circumstances stated therein.

The respondent (husband) married the appellant (wife) and had a son by her. A few years later the respondent divorced his wife. By a consent decree, in the suit filed by the wife, he transferred to her the flat in which she was living and agreed to pay mehar money. The compromise stated that the "plaintiff declares that she has now no claim or right whatsoever against the defendant". For some time thereafter they lived together but again separated. The wife moved the magistrate under s. 125 Cr.P.C. for grant of maintenance to her and her son. This was granted. On appeal the Sessions Judge held that the C.ourt had no jurisdiction under s. 125. The High Court dismissed the wife's appeal.

On further appeal to this Court it was contended on behalf of the respondent that (i) s. 125(4) would apply in the absence of proof that the wife was not living separately by mutual consent; (ii) to attract s. 125 there must be Proof of neglect to maintain the wife and (iii) no claim for maintenance in this case can survive in the face of the consent decree whereby mehar money had been paid and all claims adjusted.