JUDGMENT
B.R. Arora, J.
1. This revision petition is against the judge at dated July,26 1989, passed by the Session Judge, in Merta in Criminal Revision No. 24 of 1984, arising out of the order dated May 24, 1984, passed by the Munsiff and Judicial Magistrate, First Class, Merta.
2. Mst. Asia was married to Abdul Hamid, who divorced her on May 29, 1970. After her divorce, Mst Asia moved an application under Section 125, Cr. PC. for grant of maintenance to her. That application, filed by Mst. Asia was allowed by the learned Munsiff and Judicial Magistrate, Merta, by his order dated May 16.1970. The learned Magistrate awarded Rs. 75/- per month as the maintenance to Mst. Asia Disatisfied with the order passed by the learned Munsiff and Judicial Magistrate First Class, Merta, allowing the maintenance allowance of Rs. 75/- per month, Abdul Hamid filed a revision petition before the learned Sessions Judge, Merta, and the learned Sessions Judge, Merta, by his order dated July 23. 1979, partly allowed the revision petition, maintained the order granting maintenance but reduced the amount of the maintenance from Rs. 75/- per month to Rs. 50/- per month. This order became final as it was not challenged before the High Court and both the parties remained contended with the order passed by the learned Sessions Judge. On September 19, 1990 Mst. Asia moved an application under Section 127 Cr. PC. for enhancement of the amount of the maintenance. Abdul Hamid, also, moved an application under Section 127 Cr. P.C. on July 16, 1981. The learned Magistrate, by his order dated May 24, 1989, decided both these applications and held that Mst. Asia, the wife, is entitled for a maintenance of Rs. 50/- per month for fourteen months only. He further held that Mst. Asia is entitled for an amount of Rs. 600/- as MEHAR. He, therefore directed the husband Abdul Hamid to deposit the amount of Rs. 1300/- within a period of seven days from the dated of the order. The learned Magistrate, also held that after the payment of this amount, Mst. Asia will not be entitled for any further maintenance. It was stated at the bar that this amount of Rs. 1300/- has been paid by Abdul Hamid to Mst. Asia, Dissatisfied with the order passed by the learned Munsiff and Judicial Magistrate, Merta Mst. Asia filed a revision before the learned Sessions Judge, Merta, and the learned Sessions Judge, by his order dated July 26, 1989, allowed the revision petition filed by Abdul Hamid and set-aside the order passed by the Munsif and Judicial Magistrate and held that Mst. Asia is not entitled for the maintenance of Rs. 50/- per month and she is only entitled for the MEHAR amount of Rs. 600/-. In view of the provisions of the Muslim Woman (Protection of Right of Divorce) Act, 1989 (hereinafter referred to as ‘the Act of 1986’), the Sessions Judge dismissed the application under Section 127 Cr, P.C. filed by Mst. Asia. It is against this order that the present revision petition has been filed.
3. I have heard the learned Counsel for petitioner as well as the learned Counsel for the respondent.
4. It has been contended by the learned Counsel for the petitioner that after coming into force of the Act of 1986, a Muslim divorced woman is not entitled to any maintenance from her former husband after the Iddat period which amount the husband has already paid. He has further contended that according to Section in 3 of the Act of 1989, a divorced woman shall be entitled to a reasonable and fair protection and maintenance which is to be paid to her within the Iddat period, by her former husdand and after expiry of the Iddat period no amount is payable by the husband. The learned Counsel for the respondent on the other hand, has supported the order passed by the learned Sessions Judge and contended that the order granting maintenance under Section 125 Cr. P.C. became final much before the Act of 1986 came into force and as there is no repealing clause in the Act, therefore, the order passed under Section 125 Cr. P.C, prior to coming into force of the Act of 1986. is not affected by this Act and the non-petitioner Mst. Asia is entitled to get the maintenance allowance, which was already granted by the competent Court.
5. I have considered the rival submissions made by the Counsel for the parties.
6. The point for consideration before me in this revision petition is that the effect of the provisions of the Muslim Women (Protection of Rights of Divorce) Act, 1986 (hereinafter referred to as ‘the Act of 1986’) on the orders of maintenance passed in the present case under the Code of Criminal Procedure and whether the orders passed under Section 125 Cr. P.C. remain effective even after coming into force of the Act of 1986 ? This matter came-up for consideration before the Division Bench of this Court in the case of Abid Ali v. Mst. Rasia Begum and Other, similar cases (1988 R.C.C. 51), and after considering the various authorities on the point and the intention with which the Act of 1986 was enacted, the Division Bench observed as under :
“A comparative look at the provisions Contained in Chapter IV of the Code of Criminal Procedure and those contained in the Act, 1986, would show that there is no saving clause provided under the Act, 1986 by which any order passed in favour of the divorced Muslim woman under Section 125 of the Code of Criminal Procedure could be vitiated or liability created on husband in this regard could be held valid or enforceable.”
“Section 125 Cr. P.C. entitled a divorced woman to get maintenance from her husband until she is remarried whereas Section 3 of the Act curtails her right to get maintenance till the period of Iddat. In this view of the matter, Section 125, Cr P.C. in so far as it had created right to a Muslim divorced woman to get maintenance until she is re-married, has been impliedly repealed.
“Under the Act, 1986, husband who has divorced his wife is not under obligation to pay maintenance to such wife after the period of Iddat and such wife has been given a right to claim maintenance from the person mentioned in Section 4 of the Act, 1986 after the period of Iddat. So, responsibility is cast upon the person other than husband to pay maintenance after, the period of Iddat. Having lost her right to get maintenance from her former husband after the period of Iddat she has lost her remedy also as provided under Section 125(3) Cr. P.C. to enforce her said right in case her former husband fails without sufficient cause to comply with the order of maintenance. Thus, if a divorced Muslim woman files a petition, under Section 125(3) Cr. P.C. which in substance is a penal provision it will be an action without remedy. Because after the passing of 1986 Act all the applications, under Section 125 & 127 Cr. P.C, are to be diposed of in accordance with the provisions of the Act of 1989 as is laid down in Section 7 of the Act of 1986.
“The Act of 1986, as stated earlier, does not contain any saving clause for the right created or orders passed in favour of a Divorced Muslim woman. However, the Act 1986 has completely obliterated the right of such woman to get maintenance. The repeal without saving such right means that such woman had never acquired such right and in this view of the matter, the said right now cannot be enforced under Section 125(3) Cr. P.C. Therefore, if a Muslim woman divorced prior to coming into force of the Act in whose favour order of maintenance has been passed and has become final or is pending in revision or in other Court is being challenged by the husband and if such an order is held to be executable then it will be in our considered view, in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act 1986 for which it has been enacted.
7. From the provisions of the Act of 1986 and the object with which it was enacted by the Parliament, it is clear that a divorced Muslim woman is entitled to get the maintenance only upto the period of Iddat and after the period of Iddat the Muslim divorced woman is not entitled to get the maintenance from her former husband as she has lost her right in view of the provisions of Section 3(1)(a) of the Act of 1986. The Act of 1986 has completely obliterated the right of maintenance to divorced Muslim woman. The repeal without saving such right means that such woman had never acquired such right and in this view of the matter, the said right now, cannot be enforced under Section 125 Cr. PC. Even if an order granting maintenance had been passed in favour of a Muslim divorced woman prior to the coming into force of the Act of 1986 and has become final or is pending in the revision before any Court or is being challenged by the husband, even in those cases, the Muslim divorced woman is not entitled to get the Maintenance as allowing the maintenance in those cases will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act for which it has been enacted. No exception has been made in Section 7 of the Act of 1986, which means that neither the order passed under Section 125 Cr. PC nor the libility already incurred earlier to the coming into force of the Act, 1986 has been saved. The inevitable conclusion of passing of the Act of 1986 is that not only right under Section 125(1) but also the remedy under Section 125(3) Cr. P.C. are lost. Section 7 of the Act of 1986 envisaged a complete replacement of right and remedy under Section 125 Cr. P.C. In this view of the matter, the respondent Mst. Asia is not entitled for maintenance after the Iddat period.
8. Consequently, the revision petition filed by Abdul Hamid is allowed and the judgment passed by the learned Sessions Judge, Merta dated July 26, 1989, is set-aside and it is held that the respondent Mst. Asia is entitled for the maintenance only upto the Iddat period.