SADIQUE ALI Vs. APAR SESSIONS NAIYAI DHEESH

JUDGEMENT

(1.) This writ petition has been directed against the judgment and order dated 1.10.1991 passed in Criminal Case No. 94/91 passed by the learned Magistrate and the judgment and order dated 11.11.1992 passed by the Additional Sessions Judge in Criminal Revision No. 479/91. Execution proceeding No. 110/83 was continuing since long and after change of status due to divorce an application was filed by the husband before the learned Magistrate for cancellation of the execution proceedings and the same was rejected on 1.10.1991.

(2.) A revision was preferred by the petitioner before the Court of Sessions and by an order dated 11.11.1992 the Addl. Sessions Judge, Basti, dismissed it on the ground that the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called as the Act) has no retrospective operation. Both the Courts below referred Section 7 of the said Act wherein it has been provided that every application of a divorced woman under Section 125 or under Section 127 Cr.P.C. pending before a Magistrate on the date of the commencement of this Act shall be disposed of by the such Magistrate in accordance with the provisions of this Act. Accordingly, both the Courts below held that since the present Act has no retrospective operation and hence the case decided prior to the date of enforcement of this Act, i.e. 19.5.1986 will not be guided by the provisions of this Act. In those cases provisions of Cr.P.C. will be applicable and proceeding under Section 128 Cr.P.C. is legally maintainable. This is the grievance of the petitioner in this writ petition.

(3.) Learned Counsel has submitted that paramount consideration was not that the Act has retrospective operation but should have that after commencement of this Act whether a divorcee will be guided by the Cr.P.C. or the present Act. He has referred Section 3 of the Act wherein it has been stated with a non-obstan te clause that a divorced woman shall be entitled to a reasonable and fair provision of maintenance for the period of 'Iddat' by her former husband and that an amount equal to mahr or dower agreed to be paid to her at the time of her marriage and all the properties given to her before or at the time of marriage as gift or dahej. So according to him due to change of the status at the commencement of this Act i.e., on 19.5.1986, she cannot claim maintenance from her former husband under Section 125 Cr.P.C.