1. The criminal revision petition as well as the writ petitions come before us on reference since important questions of law are involved in these cases. The main questions that arise in the writ petitions are the following;

(1) whether s. 125 of the code of criminal procedure, 1973 is violative of art. 14 and 19 of the constitution;

(2) whether s. 125 offends the fundamental rights under art. 25;

(3) whether a wife who was divorced or who obtained divorce before the act came into force can seek the benefit of the section. In other words, Whether this section can be retrospective in operation.

(4) whether the definition of wife in s. 125 (1) offends s. 125 (4) of the code.

the prayer in the petitions is to declare explanation (b) to s. 125 (1) of the code of criminal procedure, 1973, For short, The code, Ultra vires the constitution, That it is in conflict with the personal law of muslims and for other incidental reliefs. To put it shortly, The question agitated before us is that since the new code confers on wives, Who have been divorced or who have obtained divorce and remain unmarried, A right of maintenance, The relevant portion of the section has to be struck down.

2. The constitutional validity of the section is challenged on the basis of art. 14 and 19 and also as violative of art. 25 of the constitution. The challenge under art. 14 is not at present available to any person with the proclamation of emergency by the president of india and by virtue of the notifications dated 25 - 61975 and 27 61975 issued by the president of india, Under art. 359 (i) of the constitution. Art. 359 reads as follows:

"359 (1). Where a proclamation of emergency is in operation, The president may by order declare that the right to move any court for the enforcement of such of the rights conferred by part iii as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.

(2) an order made as aforesaid may extend to the whole or any part of the territory of india.

(3) every order made under clause (1) shall, As soon as may be after it is made, Be laid before each house of parliament".

according to this article, After the issuance of an order by the president, As contemplated therein, The right to move any court for the enforcement of such of the rights in part iii of the constitution, As are mentioned in the notification, Is suspended and no party can thereafter move a court for the enforcement of any such right. If any person moves the court for such relief, The court will decline to entertain it. All

proceedings pending in any court for enforcement of such rights shall remain suspended. This will be for the period during which the proclamation is in force or for such shorter period as may be specified in the order. The notifications under art. 359 (1) were issued on 25 - 61975 and 27 61975. Therefore, All the petitions filed after 25 - 6 - 1975 will have to be dismissed and all petitions pending on that date will have to be adjourned sine die.

3. The learned advocate - general, Who appeared for the state, Contended further, That all interim orders passed in the writ petitions pending on the date of the notifications have to be vacated, Since not to do so would be indirectly taking away the effect and purpose of art. 359.

4. In support of the contention that even interim orders passed in petitions pending before a court have to be vacated, The learned advocate - general sought support from the decisions of the supreme court reported in makhan singh v. State of punjab (air. 1964 s. C. 381), Mohan choudhury v. Chief commissioner, Tripura (air. 1964 s. C. 173) and ghulam sarwar v. Union of india (air. 1967 s. C. 1335). The learned advocate - general also relied upon various text books to reinforce his case that the court as far as possible should try to effectuate the purpose of the statute and not to destroy it. We think it will be enough to refer to the following, For the purpose of disposal of this aspect of the case. In air. 1964 s c. 381 (supra), It is thus observed:

"since the object of art. 359 (1) is to suspend the rights of the citizens to move any court, The consequence of the presidential order may be that any proceeding which may be pending at the date of the order remains suspended during the time that the order is in operation and may be revived when the said order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the order has been issued, Because the order takes away the right to move any court and during the operation of the order, The said right cannot be exercised by instituting a fresh proceeding contrary to the order. If a fresh proceeding falling within the mischief of art. 359 (1) and the presidential order issued under it is instituted after the order has been issued, It will have to be dismissed as being incompetent.

in other words, Art. 359 (1) and the presidential order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the presidential order have been contravened and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the proclamation or for such shorter period as may be specified in the order".

several other arguments are advanced in that case regarding the scope and ambit of art. 359 (1), Which are discussed in paragraphs, 15,19 and 26. We do not think it necessary to refer to those arguments here. Suffice it to say, That the ratio of the case is that art. 359 (1) and the presidential order issued under it, Constitute a sort of moratorium or blanket ban against the continuance or institution of any legal action for enforcement of any such rights mentioned in the notifications, To keep alive an interim order passed by court and adjourn pending matters sine die would in effect be to make the notifications issued under art. 359 (1) ineffective and will create an anomalous situation. For example, A and b, Both entitled to identical reliefs, Move the court for enforcement of their rights under art. 14 of the constitution. A files a petition and obtains a stay order prior to the issuance of notification under art. 359 (1) while, B moves the court a day after the notification. B's petition will have to be dismissed, Since it was moved after the notification came into effect. A's petition will have to be suspended and adjourned sine die keeping alive interim orders passed. This cannot be allowed. Although an interim order of stay is an order passed on a prima facie satisfaction such an order cannot be allowed to be in force in view of the wide language and wide import of art. 359 (1) of the constitution and notifications issued thereunder.

5. Incidentally, The learned advocate - general referred us to the decision reported in state of orissa v. Khageswar das (air. 1975 s. C. 1906) para 7 to reinforce his argument that even interim orders which were passed prior to the proclamation of emergency cannot be kept alive when the main petitions are suspended. In this case, The orissa high court had struck down the notification on the ground of violation of art. 14 and 16 of the constitution. The only prayer before the supreme court was for deletion of enforcement of the order of the high court since to keep alive the order of the high court would in effect be to defeat the second part of art. 359 (1) of the constitution. The supreme court observed thus:

"the judgment of the high court was handed down on the 30th november, 1972 long before the issuance of the notification dated 27th june, 1975 by the president of india under art 359 (1) of the constitution. The rule was declared ultra vires on the ground of violation of art. 14 and 16. The state of orissa was the appellant before us. It was, Therefore, Agreed on all hands that this appeal was not a proceeding pending in this court for the enforcement of the right under art. 14 of the constitution and was, Therefore, Not suspended. The enforcement of the right was made by the delivery of the high court judgment and the state merely wanted in this appeal a deletion of that enforcement"

applying this principle, It has to be held that even interim orders passed in pending proceedings cannot be kept alive, When the main petitions are adjourned sine die, Since to do so would be to defeat the purpose of art. 359 (1) of the constitution. Therefore, In all pending petitions interim orders passed by the court staying proceedings before the magistrate's courts for maintenance under s. 125 of the code, Are vacated.

6. An interesting question regarding the revisional jurisdiction of this court was debated in the criminal revision petition. The question was whether in a criminal revision petition, The court could go into the constitutional validity of a section. The learned advocate - general contended with reference to decisions of the supreme court that the revisional authority of this court is co - eval with the powers of the courts subordinate to it and therefore the revisional jurisdiction of this court extended only to the examination of questions that the courts below had to examine. In other words, This court in revision cannot go into the validity or otherwise of the section through whose instrumentality this court derives its revisional jurisdiction. In this connection, The learned advocate - general referred to the decisions reported in k. S. Venkataraman and co. V. State of madras (air. 1966 s. C. 1089) and dhulabhai v. State of m. P. (air. 1969 s. C. 78). The latter case appears to discuss the matter in detail. The ratio of this case is that the high court or the supreme court cannot in revision or while exercising jurisdiction either advisory or revisional, Question the very power which gave them jurisdiction. The relevant discussion in air 1969 s. C. 78 (supra) appears at pages 84, 87, 89 and 90. This argument was sought to be met by the other side with reference to the wider jurisdiction of this court under art. 226, 227 and 228 of the constitution and relying upon various other authorities. According to us, The matter needs a comprehensive consideration and can be reserved in an appropriate case. The counsel for the revision petitioner did not also invite us to pronounce upon this point in these petitions. Accordingly, We leave that question open.

7. The main contention raised before us related to the retrospectivity of s. 125 of the code. The argument was that the benefit of the section would be available only to wives who were divorced after the act came into force and its benefits cannot be invoked by those wives who were divorced before the act came into force. To confer the benefit on ex. Wives divorced before the act would be doing violence not only to the language of the section, But would be making the other sub - sections of s. 125 understandable and rendering them absurd and making a mockery of the wisdom of parliament.

8. The new section has effected some changes in the existing law. Under s. 488 of the old code, The wife could claim maintenance even if she was able to maintain herself. But now the section itself provides that only wives unable to maintain themselves can claim maintenance. The most important change introduced in the new section is the definition to the word 'wife'. The definition is contained in clause (b) to the explanation in s. 125 (1). The definition reads%

"'wife' includes a woman who has been divorced by, Or has obtained a divorce from, Her husband and has not re - married"

this departure from the earlier law, Is a milestone in the social legislation conferring benefits to a particular group of women who is in need of help. The other changes brought about by the section are that the father and mother of a person unable to maintain himself/herself are also given the benefit to claim maintenance. Legitimate and illegitimate child who has attained majority but who by some physical or mental incapacity is unable to maintain itself is also given benefit under the section. However, We are not concerned with these things. We are mainly concerned with ex - wives.

9. In defining wives to include an ex. Wife, This section imports a legal fiction and creates a relationship between a man and a woman only for the purpose of claiming maintenance. When we say only, We want to make it clear that this section does not in any manner create a jural relationship between the man and the woman for other purposes, The object being to prevent vagrancy and to protect such women from poverty and starvation. In addition to the contention that the section cannot be effectuated retrospectively, It was further contended that the definition in effect is an invasion on the personal law of muslims. The contention is that according to the muslim personal law, Now applicable to muslims in india, A husband is liable to maintain his wife after divorce only during the period of iddat. To confer a right of maintenance for the period after iddat is to confer a right opposed to the religious law of muslims and is therefore bad. The definition, It was contended, Cannot mulct a muslim husband with the liability to maintain his ex. Wives after the period of iddat till she gets re - married.

10. According to us, The argument based on the retrospective operation of the section betrays a confusion of thought. There is an apparent fallacy in the said argument. The concept of retrospectivity or retroactivity cannot and need not enter the field of discussion while construing s. 125 of the new code. If this section had given a right to a wife, Who was divorced before the act, To claim past maintenance under the new code, Then the argument would be well - founded. Both s. 488 of the old code and s. 125 of the new code deal only with future maintenance. There is no question of claiming any past maintenance under either of these sections. Therefore, The section does not confer any right to a woman who was once a wife, To claim maintenance for the period after divorce till her re - marriage. That is why we say that the concept of retrospectively is misplaced in a discussion of the new definition of wife occurring in s. 125. All that the section does, Is to give to an ex. Wife the right to claim future maintenance from her quondam husband for a future period till she gets re - married.

11. It is submitted that when the wife was divorced or when she obtained a divorce before the act, The husband was not told that at a future date he will have to face the liability of paying maintenance to his wife. In other words, The new definition impairs an existing right of the husband, The existing right being, The denial to his ex. Wife the right to maintain. No enactment should be read in such a matter because it will be taking away the vested right available to a man without telling him so. The counsel for the petitioners contended that divorce, At the time it took place, Was perfectly valid and to give such a woman the right to claim maintenance would in effect be giving a retrospective operation to the section.

12. Now, Let us examine the effect of this argument. The code of criminal procedure, Although by its very name, Indicates that it contains procedural law contains sections like s. 488 of the old code corresponding to s. 125 of the new code, Which are not only procedural but to some extent substantive law also. Under these provisions, A party derives a right to claim maintenance from a husband or father. The section, Therefore, In addition to prescribing procedural matters, Confers a right upon a class of persons to claim maintenance. The question is how does the question of retrospectivity come in when we concede to the wife a right to claim maintenance in future. If a part of the requisites for the operation of the section is drawn from a date antecedent to its passing, It need not on that score alone be retrospective. To accept the petitioners' case would be to deny a wife divorced a day prior to the passing of the act, Its benefits. We are not prepared to accept this position.

13. The essence of retrospectivity is to apply an act solely to past actions. That is not the case here. That is why, We expressed ourselves earlier in the judgment, That if the section had given a right to the ex. Wives to claim maintenance which accrued due prior to the passing of the new code, Then the argument of retrospectivity would be effective. But in this case, All that the legislature has done is to import a legal fiction to create an artificial status of husband and wife for the only purpose of enabling the wife who has been divorced or who has obtained divorce, And was not re - married to claim maintenance. Viewed thus, We do not find our way to accept the contention that there is either an element of retrospectivity or that the section impairs a right already available to a party. S. 125 has to be read in the context of the benefit that it seeks to confer and in so doing if a few women who were divorced prior to the act became entitled to claim maintenance, The object of the section itself cannot be defeated to protect the interests of their husbands.

14. In considering social welfare legislations, The courts will be justified in straining the language a little to achieve the object of the enactment. If the object of the enactment can be achieved only by the martyrdom of a few husbands, We will boldly do so and would not shirk our duty in effectuating the object of the enactment. If statistics are taken, It will be clear that women who have taken advantage of such protection are young divorcees who have been mercilessly divorced by their husbands or who had to obtain divorce from their husbands on account of cruelty or for other reasons. The exceptional cases of old divorces will be few and far between.

15. The indian society is peculiar in its nature, In its treatment of women. A divorcee carries with her many disqualifications. A girl in her teens divorced by her husband, Can thereafter expect only a man in his midfifties as husband or will have to remain unmarried throughout her life, While a husband who had divorced his wife, Can get a girl of sweet - seventeen, The next day. It will not be far from truth to say that in the case of marriage and divorce, The society continues to be a man's society. We can take judicial notice of the fact, Of several young girls suffering the agony of life with all its privations and penury for no fault of theirs, After they are divorced by their husbands and it is such hard cases that perhaps induced and impelled the supreme law making body of this country to enact the provisions contained in s. 125 of the new code. Ours is a peculiar society, Where women suffer manifold disabilities while men have always an upper hand. There is no use saying that equal opportunities have been provided for women in all walks of life. We can say with confidence that the evil of divorce and consequent miseries of divorced women are a reality. One daily witnesses the sorry spectacle of young girls in teens with children astride their waist waiting in the corridors of courts claiming maintenance from their husbands only for their children, And not for them since they are divorced. This provision, Therefore, Is a highly salutary one and is meant to alleviate the sufferings of such women and to cause a little deterrent to erring and callous husbands. In this process, If a few husbands who had divorced their wives long ago, Have to suffer, It cannot be helped.

16. We have therefore no hesitation in rejecting the plea put forward by counsel for the petitioners that it will be doing violence to the wording of the section and to the accepted canons of interpretation of statutes to give retrospective operation to the section.

17. Shri v. M. Nayanar, Appearing for some of the respondents, Attempted to sustain and uphold the section and stated that the arguments based on retrospectivity cannot be accepted. He referred to us the decision reported in bhagwan dutt v. Kamla devi (air. 1975 s. C. 83). The question that fell for decision, Which was prior to the coming into force of s. 125 of the code, Was whether in determining the amount of maintenance to be paid to the wife, It was competent for the magistrate to take into consideration the means of the wife. The present section clearly makes only a wife unable to maintain herself to claim maintenance. Here, We are concerned only with para. 11 of the judgment at page 85:

"ss. 488, 489 and 490 constitute one family. They have been grouped together in chapter xxxvi of the code of 1898 under the caption, 'of the maintenance of wives and children'. This chapter, In the words of sir james fitzstephen, Provides "a mode of preventing vagrancy, Or at least of preventing its consequences. " these provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, Speedy but limited relief, They seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap - heap of society and thereby driven to a life of vagrancy, Immorality and crime for their subsistence. Thus s. 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the magistrate is more in the nature of a preventive, Rather than a remedial jurisdiction. "

18. It is contended on the strength of this decision that the act is not punitive in nature and therefore there is no justification in contending that it cannot be made retrospective. He placed strong reliance on the decision of the supreme court reported in state of bombay v. Vishnu ramachandra (air. 1961 s. C. 307). The supreme court in that case considered the effect of the verb "has been" in s. 67 of the bombay police act and observed thus in para. 13:

"it remains only to consider if the language of the section bars an action based on past actions before the act was passed. The verb "has been" is in the present perfect sense, And may mean either "shall have been" or "shall be". Looking, However, To the scheme of the enactment as a whole and particularly the other provisions of it, It is manifest that the former meaning is intended. The verb "has been" describes past action and, To borrow the language of fry q. In 1884 - 12 qbd 334" is used to express a hypothesis, Without regard to time. ".

19. More apposite for our purpose, Are the observations of the supreme court, In b. P. Andre v. Superintendent, Central jail (air. 1975 s. C. 164), Where the scope of s. 428 of the new criminal procedure code was considered. Since the observations relate to another section in the same code as the one with which we are dealing, It is of greater assistance. The question that arose in that decision was whether the benefit of set off allowed to a person convicted contained in s. 428 of the new code, Could be availed of only by a person who has been convicted after the coming into force of the new code or by persons convicted before the coming into force of the new code. The supreme court observed that the benefit would apply to persons convicted both before and after the code. The importance of this decision is that in s. 428 also we find the words "has been" used. This matter is discussed in para. 2 of the judgment, The relevant portions of which are extracted below:

"2. The question which arises for determination in this petition is a narrow one and it rests on the true interpretation of s. 428. Is this section confined in its application only to cases where a person is convicted after the coming into force of the new code of criminal procedure, Or does it also embrace cases where a person has been convicted before but his sentence is still running at the date when the new code of criminal procedure came into force? it is only if the latter interpretation is accepted that the petitioner would be entitled to claim the benefit of the section and hence it becomes necessary to arrive at its proper construction. S. 428 reads as follows:

"where an accused person has, On conviction, Been sentenced to imprisonment for a term, The period of detention, If any, Undergone by him during the investigation, Inquiry or trial of the same case and before the date of such conviction, Shall be set off against the term of imprisonment imposed on him on such conviction, And the liability of such person to - undergo imprisonment on such conviction shall be restricted to the remainder, If any, Of the term of imprisonment imposed on him"

this section, On a plain natural construction of its language, Posits for its applicability a fact situation which is described by the clause "where an accused person has, On conviction, Been sentenced to imprisonment for a term". There is nothing in this clause which suggests, Either expressly or by necessary implication, That the conviction and sentence must be after the coming into force of the new code of criminal procedure. The language of the clause is neutral. It does not refer to any particular point of time when the accused person should have been convicted and sentenced. It merely indicates a fact situation which must exist in order to attract the applicability of the section and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new code of criminal procedure. Even where an accused person has been convicted prior to the coming into force of the new code of criminal procedure but his sentence is still running it would not be inappropriate to say that the "accused person has, On conviction, Been sentenced to imprisonment for a term.

the section operates prospectively on the sentence which yet remains to be served and curtails it by setting off the period of detention undergone by the accused person during the investigation, Inquiry and trial of the case. Any argument based on the objection against giving retrospective operation is therefore irrelevant. "

the reasoning contained in the observation extracted above applies to the case on hand also. In the definition in s. 125 also, The language is neutral. It does not refer to any point of time when the divorce took place.

20. The view that we have taken regarding the concept of retrospectivity also is seen reflected in this judgment. The supreme court observed that the section operates prospectively on the sentence which yet remains to be served. Same is the case with s. 125 also. All that it intends, Is to confer prospectively a benefit to wives who have been divorced, But who have remained unmarried. Therefore, The contention that the definition in s. 125, Cannot apply to wives divorced prior to the coming into force of the act, Cannot be accepted.

21. As the supreme court has observed in the above cases, Looking at the scheme of the enactment as a whole, We cannot escape the conclusion that the definition intended or took in its sweep past actions also and therefore wives who have been divorced before the act also can take advantage of this definition. It cannot be said that the verb 'has been' relates only to future action and not to past action.

22. Now, We come to the other limb of the argument that the new definition is an invasion of the personal law of parties. The argument is based on art. 25 of the constitution. This is put forward mainly by those petitioners who are muslims. It is not without significance that out of the cases before us, Except one, All are by muslim husbands. This is because, This section seeks to undo or destroy or at least impair the absolute privilege indiscriminately enjoyed by muslim husbands to divorce their wives. Under the muslim personal law, At present available in this country, A muslim husband, Can freely divorce his wife. He can do so at any time and under any circumstances. We would like to make it clear that this is the personal law which is a legacy of the past which the old masters of this country made for muslims, Which is not the real islamic law. Precedents on this point, According to us, Need a fresh look and an authoritative pronouncement is necessary, If legislation is not forthcoming in this regard. According to us, The matter has to be viewed from a different angle, After the passing of the 1937 shariath act, And it is surprising that the decisions that held the field regarding the uncontrolled power of muslim husbands to divorce their wives, Have not been tested against the provisions contained in the muslim personal law (shariath) application act, 1937, Which lays down that the rule of law applicable to parties who are muslims, Shall be shariath law. What exactly is meant by shariath law, Has not so far been attempted to be explained, Investigated or decided by a court of law.

23. With regard to the attack based on art. 25 (1) of the constitution of india, We agree that the same is not barred under the notifications issued under art. 359 (1) of the constitution by the president of india. However, We hold that the new definition does not violate the fundamental right guaranteed under art. 25 (1) of the constitution. The definition in s. 125 (1) comes within the "providing for social welfare and reform " legislation contained in art. 25 (2) of the constitution and hence the challenge under art. 25 is not available for the petitioners. The code of criminal procedure transcends the personal law of parties.

24. Liability to give maintenance to ex, Wives is nothing new or peculiar to the code of criminal procedure. The same right is available under s. 25 of the hindu marriage act, 1955 and the indian divorce act. Therefore the undue and undeserved agitation against this legal reform does not appear to be justified.

25. We may also answer another argument based upon s. 125 (4) and (5). These sub - sections read as follows:

" (4) no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, Or if, Without any sufficient reason, She refuses to live with her husband, Or if they are living separately by mutual consent.

(5) on proof that any wife in whose favour an order has been made under this section is living in adultery, Or that without sufficient reason she refuses to live with her husband, Or that they are living separately by mutual consent, The magistrate shall cancel the order. "

sub - s. (4) therefore says that a wife will not be entitled to receive maintenance if she is living in adultery or without sufficient reason refuses to live with her husband. According to mr. Sukumaran nair, This sub - section read along with the new definition, Would sadly reflect on the wisdom of the law making body, Since, When a wife ceases to be a wife, There is no question of her living in adultery, Because adultery postulates existence of the legal status of a wife. He also submitted that it is revolting to commonsense to contend that an ex. Wife can be asked to live with her husband.

26. We will answer this argument. The husband has two defences open to him when claim for maintenance is made by his wife. First, To prove that she is living in adultery. Second, If he satisfies the court that she refuses to live with him without sufficient cause or 'if they are living separately by mutual consent. The contention of sri sukumaran nair that an ex. Wife cannot, In law, Live in adultery, Cannot be accepted if the definition of wife in the new code embraces all the sub - sections of s. 125. If that be so, When the wife who is living in adultery - files an application for maintenance, The husband can successfully contend that she, Though an ex. Wife, Is living in adultery and therefore is not entitled to maintenance. After all the liability to maintain ex. Wives is till they get remarried.

27. The second limb of the argument also has no basis. If the wife refuses to live with him, Without sufficient cause, No maintenance will be granted. It is contended that after divorce, No husband will like his wife to live with him. Need not necessarily be so. By this section, Indirectly a very welcome and salutary object can be achieved. It is possible for a husband and wife, Who have been separated for a short period, To get reconciled. To illustrate this point, We will take the instance of a muslim husband and wife. Under the pure islamic law, A divorce can become irrevocable only after the third pronouncement of talaq. Revocable divorce is on two occasions. There can be revival of conjugal relationship during the period of waiting. "the divorced woman should keep themselves waiting for three courses". This is so provided to give an opportunity to the parties to recant. If the wife, After the first talaq files an application for maintenance there is a chance of reconciliation. The husband can ask the wife to live with him and the wile can join him again. Therefore, It cannot be said that the new definition offends sub - sections (4) and (5) of s. 125. When we refer to the above illustration, We are not unaware of talak - ulbidaat or talak - i - badai, Which consists of three pronouncements made during a single tuhr (period between menstruations) by which an irrevocable divorce comes into existence immediately it is pronounced. We cannot redeem muslim wives from this bondage, Since we ordinarily interpret law and do not make law.

28. Therefore, We hold that the definition of 'wife' given in s. 125 (1) and the legal fiction implied therein apply to the entire section.

29. An attempt may be made to destroy the effectiveness of s. 125 of the new code and to deny the benefits under it to the rightful claimants by resort to s. 127 (3) (b) of the same code. We will read that section.

" (3) 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

(a) xxxx

(b) the woman has been divorced by her husband and that she 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 -

this section provides that the magistrate shall cancel the order for maintenance if any sum under any customary or personal law applicable to the parties is paid on divorce. This section may be pressed into service by some ingenious husbands to defeat the provisions contained in s. 125. We would like to make it clear that s. 127 (3) (b) refers not to maintenance during the period of iddat or payment of dower. Unfortunately, Place of dower is now occupied by dowry, Payable by the girls' parents, Which till 161961 was paid in public and thereafter in private; thanks to the dowry prohibition act, 1961. It is therefore not a sum of money which under the personal law is payable on divorce as expressed in s. 127 (3) (b). On the other hand, What is impliedly covered by this clause is such sums of money as alimony or compensation made payable on dissolution of the marriage under customary or personal law codified or uncodified, Or such amount agreed upon at the time of marriage to be paid at the - time of divorce; the wife agreeing not to claim maintenance or any other amount. We thought it necessary to clarify this position lest there be any doubt regarding the scope of s. 127 (3) (b), For, At the first blush, It might appear that, It takes away by one hand what is given under s. 125 by the other hand. This is not so.

30. In the result, We hold that the definition of wife in s. 125 applies to pre act ex. Wife as well as to post act ex. Wife, And that the concept of retrospectivity will not render the section ineffective.

31. Normally, Crl. R. P. 410 of 1974 has to be returned to the concerned sessions judge for disposal. But since it has been before us for a long time and since an important question of law has been raised before us, We allowed the matter to be agitated here. There is no merit in the revision petition. Crl. R. P. Is accordingly dismissed.

32. O. P. Nos. 3843 and 3986 of 1975 are dismissed. O. P. Nos. 4718 of 1974, 310, 611, 1264, 1821, 1824 and 2173 of 1975, Which were pending at the time the notifications dated 25 61975 and 27 61975 were issued, Will stand adjourned sine die. Interim orders of stay granted in these writ petitions, However, Will stand vacated. In the circumstances of the case, We direct the parties in the o. Ps to bear their respective costs.