The provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 override the provisions of Section 125 of the Cr.P.C. and other allied sections in respect of maintenance of divorced Muslim women.

Shamsuddin Ahmed, J.

This matter is placed before us on a reference to the Division Bench by Sri M.G. Mukherjee, J. by his order dated 28.9.88.

2. This revisional application was filed by the husband petitioner for setting aside an order passed by the learned Additional Sessions Judge, 9th Court, Alipur in Criminal Motion No. 110/87. The petitioner's case as disclosed in his revisional application is that on October 18, 1981 he married the opposite party Sahani Bibi according to Muslim rites and customs. The marriage was registered on the same date. Then Mohar was fixed at Rs. 999/-. The relationship between the parties became strain and ultimately on September 29, 1982 the wife left her matrimonial home. On November 8, 1982 the petitioner divorced the opposite party wife by a registered talak and communicated the same to her by advocate's letter dated 1.12.82. The opposite party filed an application under s. 125 of the Cr. P.C. on 15th December, 1982. The learned Judicial Magistrate by his order dated 8th August, 1985 allowed a monthly maintenance @ 250/- in favour of the wife and @ 150/- for her baby with effect from August 1985. On September 29, 1986 the petitioner again pronounced three Talaks in presence of the witnesses and got it again registered. On October 25, 1986 he filed an application under s. 127 of the Cr. PC before the learned Magistrate, 6th Court, Alipur for variation and/or alteration of the earlier order passed under s, 125 of the Cr. PC. The learned Magistrate rejected the application under s. 127 of the Cr. PC. Against the order the petitioner moved the learned Sessions Judge, 24-Parganas in Criminal Motion no. 110/87. The Criminal Motion having been dismissed the petitioner has come up with this revisional application.

3. It appears that if an application under s. 127 of the Cr PC is maintainable in a case in which an order of maintenance has been passed in favour of a Muslim divorced woman after the Muslim Women (Protection of Rights on Divorce) Act, 1986 having come into force. The learned Judge noted that there are three decisions on the point by three Hon'ble Judge, of this Court which are conflicting. Accordingly, the matter has been referred to the Division Bench for a decision. In Criminal Revision No. 1012 of 86 Farhad Rahman Beg v. Mstt. Saharana Khatun, Mr. Monoj Kumar Mukherjee, J. held that the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 1986 Act) having come into force the provisions of s. 125 of the Cr. PC and the other allied section shall yield place to the provisions of the Act. Accordingly, it was further held in the said decision that the opposite party wife cannot claim a further maintenance allowance relying upon the provision of s. 125 Cr. PC. In Criminal revision no. 1657/86 Sk. Ahmed Hossain v. Mustt. Nurjahan Begum, S.S. Ganguly, J. sitting singly held that the provisions of s. 7 of the said Act is only attracted to the proceedings pending on the date of the said Act having come into force under s. 125 (?) or under s 127 of the Cr. PC. If no such application is pending on the said date further application under s. 127 will not be maintainable. The third decision on the point is reported in 1987 (II) CHN 469 (Dolna Khatoon v. Jamaluddin Ahmed & Anr.). Mr. M.G. Mukherjee, J. held that the maintenance of the minor daughter cannot in any manner be affected with the filing of the application under s. 127 of the Cr. PC read with ss. 3 & 7 of the said Act but with regard to the wife who is said to have been divorced subsequently by the husband the factum of such divorce has to be proved by the cogent evidence in a proceeding under s. 127 of the Cr. PC. The proceeding under s. 128 Cr. PC for execution and enforcement of the maintenance should not in any manner be stopped until the order of maintenance is altered on proof of the supervening circumstances. In resolving the conflicts arising from these three judgments we must first take into