MOHAMMAD ALI Vs. SALIMA KHATOON ALIAS BEGUM

JUDGEMENT

(1.) This application filed on 28-1-1988 is directed as the cause title shows, against the Order No. 54 dated 22-12-87 passed by the learned Judicial Magistrate, 1st Class Amta in Misc. Ex. Case No.3 of 1985.

(2.) The petitioner's case, as it appears from the application, is mainly this: He was the husband of the opposite party No.1. The petitioner gave three Talaks to the opposite party No.1. in Caitra 1390 B.S. (March! April, 1983). The opposite party No. I filed the Misc. Case No.5 of 1984 before the learned Judicial Magistrate, 1st Class; Amta against the petitioner claiming maintenance under Section 125 of the Code of Criminal Procedure. The petitioner contested that Misc. case. That Misc case was allowed in favour of the opposite party No; 1 by the learned Trial Court by his order dated 24.9.1985. Against that order of maintenance passed by the learned Judicial Magistrate under the aforesaid Misc. Case No. 5 of 1984 the petitioner preferred an application under Sections 397/399 of the Code of Criminal Procedure in the Court of the learned Sessions Judge, How rah which was registered and numbered as Criminal Motion No. 109 of 1985. The learned Sessions Judge, How rah by his order 17-1-86 rejected the petition for stay filed by the petitioner on 10.1-86 and thereafter dismised the Criminal Motion.

(3.) The opposite party No.1 put the order for maintenance to execution in Execution Case No.3 of 1985 already referred to. On 17-12-87 an application was filed on behalf of the petitioner before the learned Judicial Magistrate, 1st Class, Amta in the said Misc. Ex. Case No.3 of 1985 wherein the petitioner inter alia prayed for setting aside and/or modifying the earlier order dated 24-9-85 passed by the learned Court in Misc. Case No.5 of 1984. He made this prayer in the light of the express provision of the newly enforced Act being the Muslim Woman (Protection of Right on Divorce) Act. 1986 (hereinafter referred to as the ActT). He also prayed therein for not proceeding with the said execution case pending before the learned Magistrate and to adjust the excess amount already paid by the petitioner to the opposite party No.1 as mohor or dowry. The learned Magistrate by his order dated 22-12-87 rejected that application of the petitioner on the ground that the said Act has come into force in the year 1986 and the Misc. Case No.5 of 1985 has been disposed of in the year 1985 and that the Act has not been given any retrospective effect., Being aggrieved by the said order the petitioner has filed this revisional application for setting aside that order dated 22-12-87.