A divorced Muslim woman who had already obtained an order of maintenance under S. 125 or S. 127, Cr. P. C. before the commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is still entitled to enforce and execute the same in spite of the coming into force of the Act 25 of 1986.

( 1 ) THIS criminal revision has been filed under S. 482 and S. 401 of the Code of Criminal Procedure for quashing the execution case No. 7 of 1987 (arising out of Misc. Case No. 64 of 1982) pending in the Court of the learned Judicial Magistrate, 2nd Court, Arambagh in the district of Hooghly. The opposite party herein filed an application under S. 125, Cr. P. C. against the petitioner herein on 12/10/1982 claiming maintenance for herself and her child. The petitioner and the opposite party are both Muslim by religion and they were married in the year 1964. That marriage was however dissolved by a Talaknama executed on 10/11/1969. In the meantime however a child was born to them in April, 1969. The application for maintenance filed under S. 125, Cr. P. C. was allowed by the learned Magistrate on 30/09/1983 and the learned Magistrate granted maintenance at the rate of Rs. 100/- per month for the wife and Rs. 50/per month for the child with effect from lst September, 1983. The said maintenance order was put to execution by the divorced wife in the impugned execution case No. 7 of 1987 which was started on 9/03/1987. Distraint warrant was issued in that execution case against the petitioner herein and subsequently he was arrested on the strength of a warrant of arrest issued against him in the said execution case. However, he was released on bail on condition of making payment of the arrear maintenance. The petitioner has now come up before this Court for quashing the said execution proceeding, mainly on two grounds, namely (1) that with the advent of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986) -which came into force on 19/05/1986 - a divorced muslim woman is not entitled to any maintenance from her former husband with effect from the said date, and (2) that the impugned execution proceeding is barred by limitation. It is also the case of the petitioner herein that after his arrest and during the pendency of the impugned execution proceeding he has already paid in instalments a sum of Rs. 4,990/- towards the maintenance. It was also canvassed on behalf of the petitioner herein as the third ground in assailing the execution proceeding that the warrant of arrest was issued against him without waiting for the execution report of the distraint warrant.

( 2 ) TAKING the last ground first, it appears from the certified copy of the order-sheets of the impugned execution case that there was order on 20/02/1988 for

issuing distraint warrant against the petitioner herein but as that was not issued for some reason, there was a fresh order on 3/01/1990 for issuing distraint warrant fixing 17/02/1990 for E. R. (execution report ). No execution report was, however returned. The learned Magistrate issued warrant of arrest against the present petitioner by his order dated 10/08/1990 when no. E. R. of the distant warrant was yet received. In this connection, we may refer to sub-sec. (3) of S. 125, Cr. P. C. which provides that if any person fails without sufficient cause to comply with the order of maintenance, the Magistrate may for every breach of the order issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment, if sooner made. It is, therefore, evident that warrant of arrest, obviously for the purpose of effecting imprisonment of the person liable to pay maintenance should not be issued unless the whole or any part of the maintenance due remained unpaid after the execution of the distraint warrant. Therefore, the warrant of arrest should not be issued before receiving the execution report of the distraint warrant and before ascertaining therefrom whether the whole of the maintenance recoverable or any part thereof has yet remained unpaid afte