MOHAMMAD YAMEED Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(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?

(2.) 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. 150.00 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 the 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.

(3.) 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.