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N.K. Jain, J.
Sakin Bai v. Fakruddin
Criminal Revision No. 108 of 1998 (I); Decided on 6.3.1998.*
(2) Criminal P.C., 1973 -- Ss. 125 and 127 -- Muslim Women (Protection of Rights Oil Divorce) Act, 1986 -- S. 7 -- application of divorced wife pending under Ss. 125 or 127 of CrPC -- that has to be decided ill accordance with the provisions of the Act.
¼1½ eqfLye L=h ¼fookg&foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 7 & fofPNUu&fookg iRuh dk na-Á-la- dh /kkjk 125 vFkok 127 ds v/khu vkosnu yafcr & og vf/kfu;e ds mica/kksa ds vuqlkj fofuf‘pr dh tkuk gksxhA ¼2½ naM Áfdz;k lafgrk] 1973 & /kkjk 125 rFkk 127 & eqfLye L=h ¼fookg foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 7 & fofPNUu&fookg iRuh dk na-Á-la- dh /kkjk 125 vFkok 127 ds v/khu vkosnu yafcr & og vf/kfu;e ds mica/kksa ds vuqlkj fofuf‘pr dh tkuk gksxhA
Applicant is the former wife of the non-applicant who both are Mahommedans. It is not disputed that the applicant has been divorced by the non-applicant on 3.3.83. The applicant moved an application u/s 123 CrPC before ACJM Barwani, against the non-applicant for maintenance. While the application was still pending, the Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force w.e.f. 19.5.86. The non-applicant-husband thereupon made an application to the Magistrate for closure of the case. His application was rejected by Magistrate by order dated 30.10.86. However, in revision, the learned ASJ, Barwani, by the order impugned has set-aside the order and allowed the said application of the non-applicant-husband.
Section 7 of the Act of 1986 reads as follows :
7. Transitional provisions -- Every application by a divorced women 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, notwithstanding 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."
It is thus clear that in respect of a divorced women if any application u/s 125 or section 127 CrPC is pending on the date when the Act of 1986 came into force, the application has to be disposed of by the Magistrate in accordance with the provisions of the Act. It is not that such an application should be dismissed straightway but has to be considered and disposed of in conformity with the provisions of the Act and not u/s 125 or 127 CrPC.
In the light of the aforesaid legal position, I allow this revision in part and modify the impugned order of the learned ASJ and direct that the case shall now go back to the ACJM, Barwani for deciding the applicant's application for maintenance in accordance with the provisions of the Act of 1986.
Copy of this order be transmitted immediately to the ACJM, Barwani, for doing the needfu1.
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