NASEEMUNNISA BEGUM Vs. SHAIKH ABDUL REHMAN

JUDGEMENT

(1.) Heard the learned counsel for applicants and learned A. P. P. for respondent Nos. 2 and 3. None for respondent No. 1 when the matter is called out for final hearing.

(2.) To state in brief the applicant is a Muslim woman. She had filed Misc. Criminal Application No. 124/1981 before C. J. M. , Aurangabad seeking maintenance under section 125, Criminal procedure Code from her husband who is respondent No. 1. In that proceedings the respondent No. 1 had taken a plea that he had already given divorce to the applicant on 16-4-1981. The learned c. J. M. held that the respondent No. 1 had refused or neglected to maintain his wife and daughter and accordingly he directed respondent No. 1 to pay maintenance at the rate of Rs. 150/- to the applicant No. 1 wife and at the rate of rs. 50/- to minor daughter. That order was challenged by the respondent No. 1 in criminal Revision Petition No. 9/1983. After hearing the parties, learned sessions Judge, Aurangabad was pleased to reduce the maintenance granted to the applicant No. 1 from Rs. 150/- to Rs. 100/- p. m. Subject to this modification, the order passed by C. J. M. was maintained. Thus, that order of maintenance under section 125, Criminal Procedure Code became final. There was no challenge to the said order. In 1988 the applicant No. 1 and her daughter filed misc. Application No. 117/88 for recovery of arrears of maintenance against respondent No. 1. That application was contested by respondent No. 1 on the ground that in view of the enactment of Muslim women (Protection of Rights on divorce) Act, 1986 (Muslim Women Act for the sake of brevity) , the applicant being, a divorced woman was not entitled to get maintenance under section 125, criminal Procedure Code and her rights would be governed by the Muslim women Act. That objection was turned down by J. M. F. C. , Aurangabad. However, the respondent No. 1 preferred criminal Revision Petition No. 178/1988 which was allowed by learned additional Sessions Judge, Aurangabad by the judgment dated 22-12-1988, relying upon Mahaboob Khan Faizullakhan vs. Parveen Banu and another, 1988 Mh. L. J. 781. The learned Additional sessions Judge held that after enactment of the Muslim Women Act with effect from 19-5-1986 the divorced woman could not claim maintenance under section 125, Criminal Procedure Code and the provisions under section 125 or 127, criminal Procedure Code stand repealed in view of the language of section 7 of the said Act.

(3.) Being aggrieved by the order passed by the additional Sessions Judge, the applicant filed the present application challenging the order passed by the additional Sessions Judge, Aurangabad.