1. The short question for consideration in the present criminal revision is as to whether an order u/s. 125, Cr. P.C though passed before the coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Muslim Women's Act) can still be executed? It is undisputed that the opposite party Smt. Latifan was the legally married wife of Mohd. Yameed applicant. On the allegations that the husband had neglected to maintain her as also the child an application u/s. 125, Cr. P.C was moved before the Magistrate for herself as also for her child on 16-2-84. The Magistrate after taking evidence directed payment of maintenance allowance to the divorced wife at the rate of Rs. 150/- per month. On the further allegation that the husband had not complied with the said order and did not make the payment of the maintenance allowance Smt. Latifan made an application on 24-1-1990 u/s. 128, Cr. P.C before the Magistrate concerned for enforcement of the said order. By a well-reasoned judgment dated 28-3-1990 Sri Alok Saxena, the Munsif-Magistrate directed that the enforcement of the order dated 18-7-1985 was to be made only in accordance with the provisions contained in S. 3 of the Muslim Women's Act. This he did on the specific objection having been raised on behalf of the applicant-husband that the order dated 18-7-1985. passed u/s. 125, Cr. P.C was not enforceable as it were. Sri V.K Shukla, learned counsel for the applicant, has filed this” revision because the wife had taken up the order of tlie Magistrate to the court of the Sessions Judge by way of revision which was allowed on the finding that since the order of the Magistrate dated 18-7-1985 was passed before 19-5-1986 i.e the date on which the Muslim Women's Act came into force, the Magistrate's order was liable to be set aside. It was argued vehemently by Sri Shukla that the view taken by the Sessions Judge is erroneous and the Magistrate had in fact, correctly interpreted the law and the facts.

2. Sri V.M Zaidi, learned counsel appearing for the unfortunate wife Smt. Latifan though tried to canvass that she is still entitled to some maintenance in view of the provisions contained in the Cr. P.C but could not rebut the legal presumption flowing from the provisions contained in the Muslim Women's Act. This takes us to a closer look of the provisions contained in the Muslim Women's Act and also to the discussion as to what should happen to the provisions of the Cr. P.C relating to grant of maintenance to a divorced Muslim wife.

3. Let it be stated here at once that in view of the discussion following, a Muslim woman in India cannot get any maintenance from her husband in accordance with the provisions contained under the Cr. P.C if she has been divorced by the husband. The liability of Muslim husband could only be those which are imposed by the Muslim Personal Law on a husband choosing to divorce a wife. In fact, the very purpose of the enactment of the Muslim Women's Act was to get over the law laid down by the Supreme Court in the case of Mohd. Ahmad Khan v. Shah Bano, (1985) 2 SCC 556 : AIR 1985 SC 945: (1985 Cri LJ 875) and it was thus ensured that the said decision be not made the basis for claim of maintenance by a divorced Muslim wife.

4. An interesting feature in the prevalent codified law relating to grant of maintenance in summary proceedings u/s. 125, Cr. P.C (Act 2 of 1974) is that a ‘divorcee’ has been included within the meaning of the word ‘wife’ making application for such an allowance. Since under the old Cr. P.C of 1898 the word ‘wife’ did not include a ‘divorcee’ the question of invasion on any personal law never arose. However, it was held in Shah Bano's case (supra) that ‘divorcee’ could mean any woman divorcee of India for whose welfare the beneficial legislation was enacted. As it transpired, the ruling in Shah Bano's case was objected to by a section of Indian polity as going against their personal laws. Thus came the Government's intervention and at its initiative came to be enacted the Muslim Women's Act. The provisions contained in the Muslim Women's Act supposedly safeguard personal law of a Muslim husband and his liability of maintenance towards his divorced Muslim wife. In other words, Muslim Women's Act protects the rights of a divorced Muslim wife which is conferred on her by the Personal Muslim Law.

5. Section 2 of the Muslim Women's Act defining a ‘divorced Muslim woman’ includes a Muslim woman who was married according to Muslim law and lias been divorced. ‘Iddat’ period has also been defined in clause (b). S. 3(1) begins with a non obstante clause and further says “Notwithstanding anything 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.

6. Sub-secs. (2), (3) and (4) of S. 3 should also be usefully quoted here so as to have a complete view of its effect on the Cr. P.C and its provisions relating to maintenance claims hereunder.

“(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 (d) of sub-sec. (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.”

“(3) Where an application has been made under sub-cl. (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 sub-sec. (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 of her 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-sec. (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.”

7. Section 4 of the Muslim Women's Act creates a liability for the relatives of the Muslim women who may be succeeding to her property and in the event of failure of such, relatives' to make provision for her maintenance or honouring the liability fixed on them, the State Waqf Board is saddled with the liability to make provision or allowance for the divorced woman. Similarly S. 5 of the said Act gives an option to the parties to the proceedings before the Magistrate u/Ss. 125 to 128, Cr. P.C that if by an affidavit or declaration they make a statement that they would be abiding by the provisions contained in Ss. 125 to 128, Cr. P.C the Magistrate shall dispose of such application accordingly. S. 6 empowers the Central Government to make some rules for giving effect to the purposes of the Act.

8. Section 7 is the transitional provision which may be usefully quoted:—

“7. Transitional provisions: — Every application by a divorced woman u/s. 125 or u/s. 127 of the Code of Criminal Procedure, 1973 (2 of 1974), pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of S. 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act.”.

9. On a combined reading of the provisions contained in Ss. 3, 4 and 7 it transpires beyond doubt that a Muslim woman cannot maintain her application u/s. 125, Cr. P.C or u/s. 127, Cr. P.C or even get execution of the order u/s. 128 Cr. P.C It is unnecessary to go into the question whether Muslim Women's Act is retrospective or prospective in its operation, the reason being that once a married Muslim woman assumes the character of a ‘divorced woman’, the provisions of Cr. P.C will apply only to the extent permissible u/s. 4 of the Muslim Women's Act. As argued by Sri Zaidi this may result in hardship but then the purpose of the law must be carried to its logical end.

10. Coming to the facts of the present case, it may be noticed that the Sessions Judge had upset the view of the Magistrate on the supposed finding that there was conflict of opinion in the two decisions of this Court. The first authority is that of Ghulam Sabir v. Rayeesa Begum (1988 UP Cri R 182): (1988 All LJ 873) and the other authority is Faizuddin Khan v. Addl. Sessions Judge reported in 1990 UP Cri R 107 (2) : (1990 All LJ 365). The view of the Sessions Judge was that in the former case a learned single Judge has held that since the provisions of the Muslim Women's Act are not retrospective S. 125, Cr. P.C would continue to apply to the period of time earlier than 19-5-1986 but while holding so, it was held that the amount falling due prior to 10-5-1986 could be got enforced. In the latter case another learned single Judge has also held that the Muslim Women's Act is not retrospective in operation and has, therefore, held that a liability accruing for payment of the maintenance allowance due to an order u/s. 125, Cr. P.C prior to 19-5-1986 could, in spite of the provisions of the Muslim Women's Act, be enforced under the provisions contained in the Cr, P.C The learned Sessions Judge has preferred to follow the latter decision and came to the conclusion that since in the instant case the order has been passed by the Magistrate on 18-7-1985, therefore, that order survives. At the outset this Court would like to make it clear that both the learned single Judges had held that the provisions contained in the Muslim Women's Act were not retrospective. To this Court, however, it appears wholly unnecessary to go into the question of prospective or retrospective operation of the provisions contained in the Muslim Women's Act. The fact remains that in view of Ss. 3, 4 and 7, the provisions of Cr. P.C are applicable only to the extent permissible by the Muslim Women's Act and no more. Once this is so, a divorced Muslim woman loses her right to enforce an order passed even prior to the enforcement of the Act because of the non obstante clause used in S. 3 as also in S. 7 of the Muslim Women's Act. Under the circumstances the opposite party Smt. Latifan could not claim execution of the order of the Magistrate dated 18-7-1985 under the provisions of the Cr. P.C by moving an execution application on 24-1-1990 when the Muslim Women's Act had begun to operate.

11. As stated above, the Magistrate had correctly applied the law and had directed only that much to be paid as could be the liability of the husband u/s. 4 of the Muslim Women's Act. Therefore, his order has to be restored. Consequently, this revision is allowed. The order of the Third Additional Sessions Judge, Bijnor, dated 29-7-1991 is set aside and the order dated 23-9-1990 passed by the Munsif Magistrate, Bijrior, in Misc. Case No. 17 of 1989, Mohd. Yameed v. Latifan is restored.

12. Revision allowed.