V. BHASKARA RAO, J.

( 1 ) THESE two petitions are filed u/s. 482 Cr. P. C. to quash the proceedings in Criminal Revision Petitions Nos. 41 and 68 of 1988 on the file of the Addl. Sessions Court, Nellore.

( 2 ) THE brief facts of the case are : The wife and children of the petitioner-husband filed a petition u/s. 125 Cr. P. C. for grant of maintenance before the Magistrate s Court at Kavali. The Magistrate while granting maintenance to the children rejected the claim of the wife. Therefore, the wife as well as the husband, both filed revisions before the Sessions Court to the extent they were aggrieved. Pending those two revisions, the petitioner filed two petitions to dispose of the revisions in his favour by discharging him from the liability on the ground that the Magistrate without transposing the proceedings initiated u/s. 125 Cr. P. C. into those under the Muslim Women s (Protection of Rights and Divorce) Act (hereinafter referred to as the Act ) as directed by S. 7 of the Act disposed of the same. The Sessions Court dismissed those two petitions. Hence these two petitions before this court.

( 3 ) ADMITTEDLY the petition filed u/s. 125 Cr. P. C. was disposed of by the Magistrate after the Act came into force. Without observing the directions issued by S. 7 of the Act. Section Threads as under :"section 7 : Transitional provision : Every application by a divorced woman u/s. 125 or u/s. 127 of the Cr. P. C. , 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act shall, notwithstanding anything in that Code and subject to the provisions of S. 5 of the Act be disposed of by such Magistrate in accordance with the provisions of this Act. "at this juncture, it is necessary to notice that S. 3 (1) (b) of the Act"section 3 : Mehar or other properties of Muslim woman to be given to her at the time of divorce. (1) Notwithstanding anything contained in any law for the time being in force, a divorced woman shall be entitled to- (a ). . . . (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. "postulates provision and maintenance to be made and paid for the children till they complete the age of two years only. Therefore, in so far as children aged above two years are concerned, they cannot derive any help from the provisions of the Act and the only recourse available is S. 125 Cr. P. C. Consequently, for cases of this nature the application of the provisions of S. 7 of the Act cannot be extended. In this case, admittedly by the date of filing of the application u/s. 125 Cr. P. C. the children were above two years and were also minors. Therefore, the husband petitioner cannot be heard to say that the Magistrate without resorting to the course postulated by S. 7 has awarded maintenance to the children of the pending proceedings u/s. 125 Cr. P. C.

( 4 ) IT is then contended that in view of the coming into force of the Act the remedy u/s. 125 Cr. P. C. is no more available. There is no express provision in the Act repealing the provisions of S. 125 Cr. P. C. As laid down by the Queen s Bench in West Ham Church Wardens and Overseers v. Fourth City Mutual Building Society, (1892) 1 QB 654 at p. 658 to find out whether there is an implied repeal the test is :"the test of whether there has been a repeal by implication by subsequent legislation is this : are the provisions of a later Act so inconsistent with or repugnant to, the provisions of an earlier Act that the two cannot stand together. "

( 5 ) THEREFORE, it is to be seen whether there is any repugnancy between the provisions of S. 125 Cr. P. C. and those of the Act. The Supreme Court in Municipal Council v. T. J. Joseph, AIR 1963 SC 1561 at p. 1564 has indicated that the tests applied for solving the question of repugnancy under Art. 254 of the Constitution can as we

Click Here to Read the rest of this document