1997 Supreme(MP) 884

IN THE HIGH COURT OF MADHYA PRADESH
S.B. SAKRIKAR, J.
Farida Begum – Appellant
Versus
Nisar Ali Kadari – Respondent
Cr. Revn. No. 302 of 1987 (I)
Decided On : 21-03-1997

Headnote:(1) Muslim Women (Protection of Right on Divorce) Act, 1986 – S. 7 – application for maintenance by divorced muslim wife – not maintainable after passing of the Act.

       (2) Criminal Procedure Code, 1973 – S. 125 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – S. 7 – application under S. 125 of the Code – not maintainable after passing of the Act.

        Short Note

       1. Applicant Farida Begum has directed this revision petition against the order dated 27th Nov. 1987 passed by the Chief Judicial Magistrate, Ratlam in Criminal Case No. 30/87 thereby dismissing the application for recovery of maintenance allowance filed on behalf of the applicant under S. 125 (3) of the Code of Criminal Procedure.

       2. The facts of case stated in brief are that the applicant submitted the application under S. 125 of the Code of Criminal Procedure against the non – applicant for grant of maintenance allowance in the Court of Chief Judicial Magistrate, Ratlam in the year 1982. The Chief Judicial Magistrate allowed the application of the applicant and awarded Rs. 500/ – monthly maintenance in favour of the applicant vide its order dated 18.8.1982. The aforesaid order was ultimately confirmed in favour of the applicant. The applicant on 15th January, 1987 filed application before the Chief Judicial Magistrate, Ratlam for the recovery of accrued maintenance allowance. In reply, the non – applicant raised the objection that on coming into force the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, the Act of 1986) in view of Section 7 of the said Act, the application for recovery of the maintenance allowance is not maintainable. Learned Chief Judicial Magistrate by the impugned order allowed the objection of the non – applicant and dismissed the application filed by the applicant on the ground that in view of the Act of 1986 the application is not maintainable. Aggrieved, the applicant has filed this criminal revision against the impugned order of the Chief Judicial Magistrate.

       3. I have heard Shri Jaisingh learned counsel for the applicant. None appeared for the non – applicant.

       4. In the present case the applicant is a divorced wife of the non – applicant, as such the Provisions of the Act of 1986 shall apply to the instant case, on coming into force the said Act with effect from 19.5.1986. Section 7 of the aforesaid Act clearly bars the application of Section 125 or Section 127 of the CrPC in case of divorced woman on coming into force of the said Act, Section 7 of the Act of 86 reads as under : –

       "7. Transitional Provisions – – Every application by a divorced woman under Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act, shall, not – withstanding anything contained in that Code and subject to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act."

       5. In case of Usman Khan Bahamani v. Fathimunnisa Begum (1990 CrLJ 1364) the Full Bench of Andhra Pradesh High Court has held that a divorced Muslim woman cannot claim maintanance under Section 125 of the Code from her former husband after passing of the Act of 1986, In view of the law applicable to the case at hand, I do not find that learned Chief Judicial Magistrate has committed any error of illegality in passing the impugned order thereby dismissing the application filed by the applicant under Section 125 (3) of the CrPC for recovery of accrued maintenance allowance. The impugned order of the Chief Judicial Magistrate is well founded and cannot be dislodged or demolished in exercise of the revisional jurisdiction of this Court.

       6. Consequently, this revision petition is devoid of any merit and substance, the same is accordingly dismissed.