IMPORTANT POINT
As the final order under section 125 Cr. P.C. was passed in accordance with the provisions of Cr. P .C. after coming into force of the Act, though the wife was divorced during the pendency of the proceeding before the Magistrate, the order of maintenance is bad in law.

JUDGMENT AND ORDER

S.N. Phukan, J. - The Opposite Party herein filed a petition under section 125 Cr. P.C. before the Judicial Magistrate, Rajo which was registered as Case No. 60 M/83. By judgment and order dated 9.5. 1989 the Court allowed the petition and awarded a sum of Rs. 200/- per month to the petitioner to be paid by the 2nd party in the said proceeding namely the petitioner herein. As the petitioner could not pay the amount he was sent. to civil prison till the amount was paid. Hence the present petition.

2. It is not disputed that the parties to the proceeding were duly married according to the Muslim law and they resided as husband and wife for about 6 months. According to the Opposite Party, here-in, the present petitioner tortured her both physically and mentally and ultimately drove her away, and as a result she went back to her father's house. The Opposite Party has stated that though she wanted to live with her husband, the present petitioner but he refused to take her back and there was also a Village Panchayat regarding this matter. According to the present petitioner the Opposite Party here-in fled away without any reason. He has also denied the allegation of torture.

3. It may be stated that after the present petition was filed the present petitioner executed a Talaknama on 31.12.1988 before the Sadar Kazi and the Opposite Party was duly informed. The present petitioner filed a petition to drop the proceeding on the ground that in view of the divorce, the right of the Opposite Party here-in is governed by the Muslim Women (Protection of Rightsoit Divorce) Act, 1986 for short 'the Act' but the application was rejected.

4. Only question that needs consideration in the present revision petition is whether in view of divorce during the pendency of the proceeding the Opposite Party here-in can claim maintenance under Section 125 Cr. P.C. or whether her claim would be. governed by the provisions of the Act.

5. A Division Bench of this Court in Idris Ali v. Ramesha Khatun1 considered a question referred under the Act by a learned single bench of this Court. The point for consideration was whether provisions of the Act shall have an application when a divorced woman approaches the Court of a Magistrate for execution of final order already passed in her favour under Section 125 Cr. P.C. the learned single judge also observed while making the reference that for this purpose it would be required to be seen whether Section 7 of the Act shall have application of the stage of execution of final order passed under Section 125 Cr. P.C.

6. The division bench considered all aspect of the matter under the Act and also provisions of Section 127 Cr. P.C. and held, inter-alia, that prerequisite condition for application of section 7 of the Act, which was absent in respect of those petitions. It was also held that section 7 would apply only to those cases which were not finalised by the Magistrate under Section 125 or 127 Cr. P.C. on the date the Act came into force and were still pending and such application had been moved by a divorced woman. It was also held that a muslim divorced woman or her husband cannot move before a Magistrate for cancellation of the order of maintenance already granted simply on the ground that the Act has come into force. It was made clear that under section 127 Cr. P.C. there are various provisions where in case of divorce, the husband and wife may approach the Magistrate for cancellation for order of maintenance already passed on proving of certain conditions which are laid down in the said section. According to the division bench that legislatures was very much concerned not to write off the maintenance of muslim divorced wives, which had already been granted maintenance earlier under section 125 or 127 Cr. P.C. and therefore made it express that the Act would cover only cases filed after the Act came into force and those cases under Sections 125 and 127 Cr. P.C. which were pending. According to th