A divorced Muslim woman cannot maintain her application u/ S. 125, Cr. P. C. or u/ S. 127, Cr. P. C. or even get execution of the order u/ S. 128 Cr. P. C. The provisions of Cr. P. C. will apply only to the extent permissible u/ S. 4, of the Muslim Womens Act.

PALOK BASU, J.

( 1 ) THE short question for consideration in the present criminal revision is as to whether an order u/ S. 125, Cr. P. C. though passed before the coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Muslim Womens Act) can still be executed?

( 2 ) IT is undisputed that the opposite party Smt. Latifan was the legally married wife of Mohd. Yameed applicant. On the allegations that the husband had neglected to maintain her as also the child an application u/ S. 125, Cr. P. C. was moved before the Magistrate for herself as also for her child on 16-2-84. The Magistrate after taking evidence directed payment of maintenance allowance to the divorced wife at the rate of Rs. 150. 00 per month. On the further allegation that the husband had not complied with the said order and did not make the payment of the maintenance allowance Smt. Latifan made an application on 24-1-1990 u/ S. 128, Cr. P. C. before the Magistrate concerned for enforcement of the said order. By a well-reasoned judgment dated 28-3-1990 Sri Alok Saxena, the Munsif-Magistrate directed that the enforcement of the order dated 18-7-1985 was to be made only in accordance with the provisions contained in S. 3 of the Muslim Womens Act. This he did on the specific objection having been raised on behalf of the applicant husband that the order dated 18-7-1985 passed u/s. 125, Cr. P. C. was not enforceable as it were. Sri V. K. Shukla, learned counsel for the applicant, has filed this revision because the wife had taken up the order of the Magistrate to the court of the Sessions Judge by way of revision which was allowed on the finding that since the order of the Magistrate dated 18-7-1985 was passed before 19-5-1986 i. e. the date on which the Muslim Womens Act came into force, the Magistrates order was liable to be set aside. It was argued vehemently by Sri Shukla that the view taken by the Sessions Judge is erroneous and the Magistrate, had in fact, correctly interpreted the law and the facts.

( 3 ) SRI V. M. Zaidi, learned counsel appearing for the unfortunate wife Smt. Latifan though tried to canvass that she is still entitled to some maintenance in view of the provisions contained in the Cr. P. C. but could not rebut the legal presumption flowing from the provisions contained in the Muslim Womens Act. This takes us to a closer look of the provisions contained in the Muslim womens Act and also to the discussion as to what should happen to the provisions of the Cr. P. C. relating to grant of maintenance to a divorced Muslim wife.

( 4 ) LET it be stated here at once that in view of the discussion following, a Muslim woman in India cannot get any maintenance from her husband in accordance with the provisions contained under the Cr. P. C. if she has been divorced by the husband. The liability of Muslim husband could only be those which are imposed by the Muslim Personal Law on a husband choosing to divorce a wife. In fact, the very purpose of the enactment of the Muslim Womens Act was to get over the law laid down by the Supreme Court in the case of Mohd. Ahmad Khan v. Shah Bano AIR 1985 SC 945: (1985 Cri LJ 875) and it was thus ensured that the said decision be not made the basis for claim of maintenance by a divorced Muslim wife.

( 5 ) AN interesting feature in the prevalent codified law relating to grant of maintenance in summary proceedings u/s. 125 Cr. P. C. (Act 2 of 1974) is that a divorcee has been included within the meaning of the word wife making application for such an allowance. Since under the old Cr. P. C. of 1898 the word wife did not include a divorcee, the question of invasion on any personal law never arose. However, it was held in Shah Banos case (supra) that divorcee could mean any woman divorcee of India for whose welfare the beneficial legislation was enacted. As it transpired, the ruling in Shah Banos case was objected to by a section of Indian polity as going, against their personal laws. Thus came t