SHAMSUDEEN Vs. SABHIYA

JUDGEMENT

(1.) Respondents herein, mother and son, obtained an order against the revision petitioner (divorced husband of the first respondent and father of the second respondent) under S.125 of the Code of Criminal Procedure for payment of maintenance. The order was passed on 21-5-1985. The Muslim Women (Protection of Rights on Divorce) Act 1986 (for short 'the 1986 Act') came into force on 19-5-1986. Thereafter the revision petitioner filed an application before the learned Magistrate under S.127 of the Code contending that the provisions of the Act constitute change of law in regard to right and liability in respect of maintenance and change of law amounts to change of circumstances as contemplated under S.127 of the Code and, therefore, the earlier order passed for payment of maintenance to the divorced wife has to be cancelled. The learned Magistrate held that the order cannot be cancelled under S.127 and dismissed the application. That order is challenged in this revision. The learned single Judge before whom the matter came up directed that the case should be heard by a bench of two Judges.

(2.) There is no dispute that when the earlier petition under S.125 was filed and the order directing revision petitioner to pay maintenance to the respondents was passed, the first respondent had been divorced by the husband. Since S.125 of the Code permitted an order for payment of maintenance being passed in favour of a divorced wife, the order of maintenance was passed. Learned counsel for the revision petitioner would contend that in view of S.3 of the 1986 Act, the liability of the divorced husband to the divorced wife is to pay maintenance only for the period of 'iddat' and not for any subsequent period and this provision constitutes change of law in regard to maintenance. Such change of law, according to learned counsel, would attract S.127(1) of the Code.

(3.) S.125 of the Code deals with order for maintenance of wives, divorced wives, children and parents. A divorced wife who is unable to maintain herself and is neglected is entitled to secure an order of maintenance against her erstwhile husband. S.126 deals with the procedure for proceedings under S.125. S.127 deals with alteration of allowance. Sub-section (1) reads thus: