SARWAR Vs. SHAFI MOHAMMAD

JUDGEMENT

(1.) This petition raises the question whether the portion of proviso (1), Sub-section (3) of Section 488 of the Code of Criminal Procedure, which was inserted by the Code of Criminal Procedure Amending Act (No. IX of 1949), has been repealed by the Repealing and Amending Act No. XLVIII of 1952. This portion is in the following terms:

(2.) The facts of the case are simple and not in dispute. The Petitioner Smt. Sarvari was wedded to Shafi Mohammad opposite-party seven years back. The two lived together as husband and wife and there was a child by this union. Shafi Mohammad has taken another wife. Smt. Sarvari therefore refused to live with him and she has claimed maintenance under the provisions of Section 438 of the Code.

(3.) The Repealing and Amending Act of 1932 repealed the Criminal Law Amendment Act No. IX of 1949, but Section 4 of the Repealing and Amending Act mentioned that the repeal by this Act of any enactment shall not affect any other enactment to which the repealed enactment has been applied, incorporated or referred to. The words of Section 4 of the Repealing and Amending Act of 1952 seem to have escaped the notice of the learned Magistrate when he held that the Criminal Law Amendment Act No. IX of 1949 now stands repealed and therefore the wife cannot take advantage of the provisions in the proviso to Sub-clause (3) of Section 488, Code of Criminal Procedure quoted above.