Anand Prasad Singha, J.

1. The husband is the petitioner. This application is directed against the impugned order dated 2.4.1983 in Misc, Case No. 40 of 1979 field by the petitioner under sections 125 (4) (5) and 127 (2) (3) (b) of the Code of Criminal Procedure (herein after to be referred to as the Code).

2. The opposite party who happened to be the wife of the petitioner had filed a petition under section 125 of the Code in the court of the learned Sub-divisional Judicial Magistrate, Siknhana at Motihari claiming maintenance of Rs. 400.00 per month for herself and her son Mumtaz (Opp. Party No.2). She has alleged that she is the legally wedded wife of the petitioner and Mumtaz was the son, The wife had claimed that the petitioner had contracted another marriage and was living with the second wife. The Opposite Party was being neglected and she was unable to maintain herself.

3. The petitioner had filed a show cause stating therein that he had already divorced the opposite Party- wife and she was a woman of loose character. Further the petitioner has claimed that he had paid dower debt to the opposite party. The petitioner has disclaimed Mumtaz to be his son. He had also stated that after divorce he had got a second marriage.

4. It has been also alleged that the opposite party-wife was having business and was earning about Rs. 500.00 to Rs. 600.00 per month. It appears that the claim of the parties had been adjudicated and by an order dated 26-7-1980 it had been held that the said divorce became effective atleast from the date when the petitioner had filed his show cause. The learned Magistrate had directed to pay Rs. 200.00 per month as maintenance. The learned court below has held that Mumtaz was not entitled for any maintenance. Thereafter the petitioner had filed title suit No. 104 of 1980 in the court of the Munsif, Sikrahana at Motihari for a declaration that the marriage in between the petitioner and the opposite party was dissolved in January. 1959 and as such the order of maintenance is Illegal and against the law.

5. The wife-opposite party had appeared and she had also filed her written statement. She had not accepted the fact of divorce. However, the learned Munsif by his judgment and order dated 31.1.1983 had decreed the suit declaring that the marriage between the petitioner and the opposite party had been dissolved in the year 1959. Thereafter, the petitioner had filed an application under sections 125 (4)(5) and 127 (2)(3)(b) of the Code on 3.3.1983 in the Court of the learned Magistrate to cancel the order of maintenance dated 26.7.1980 in view of the decision of the Civil Court. The wife had filed rejoinder that she had filed already an appeal against the order of the Munsif and, as a matter of fact, at the time of disposal of the petition of the petitioner the appeal was pending.

6. The learned Magistrate on consideration of the facts and circumstances has opined that since the appeal was pending, there was no occasion to cancel the order for payment of maintenance.

7. Learned counsel Mr. Wasi Akhtar appearing on behalf of the petitioner has mainly contended that in view of the new enactment being the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter to be referred to as the Act) the entire situation has now changed making the opposite party not entitled for maintenance, as claimed.

8. Before I enter into the application of law on the facts of this case, I would like to say a few words with regard to the Act. The Act which is Act No. 23 of 1986 has been enacted to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands. This Act has come into force on the 19th May, 1986 after receiving the assent of the President of India published in the Gazette of India, Extraordinary Part II. The scheme of the Act is complete in seven sections. The relevant is sec. 2 which defines divorced woman and #24;iddat period which are essential for the