JUDGMENT 1. - An interesting common question of law whether after passing of Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim divorced wife has became disentitled to any maintenance under Section 125, Code of Criminal Procedure, 1973. has arisen in the afore-mentioned cases, six in numbers, (out of which, first one is Criminal misc. petition No. 405/67 - Abid Ali v. Mst. Raisa Begum, under section 482 . Criminal Procedure Code and the rest one are appeals under Section 19 of the 'amity Court Act. 1984) - hence these cases are disposed of by a single judgment. 2. Before entering into the legal controversy involved in the cases, we would like to draw a sketch of the primary facts in seriatim.1. Criminal Misc. Petition No. 405/1987The opposite party, Smt. Raisa Begum. who is said to have married to the petitioner Abid Ali, on April 29, 73 according to the Islamic customs & rites, had moved an application under Section 125, Cr. P.C , the petitioner, Abid Ali, went to Bhihadi in State of Maharashtra-during that period, the petitioner did not care to maintain his wife, Smt. Raisa who was alleged to have been maintained by her brother, Nishar, in the meantime, on April 29, 1984 a deed of divorce was sent by the petitioner to Smt. Raisa bearing date 24-4-1984, thereafter, the petitioner married with some other woman- hence the non-petitioner moved an application under Section 125, Cr. P.C. claiming her maintenance from the petitioner.The learned Chief Judicial Magistrate, Sikar, after recording the evidence and hearing the parties, allowed Rs. 200/- per month as maintenance to the non- petitioner, Smt. Raisa from 7.6.1984. The petitioner preferred a revision petition against the aforesaid order whereby the maintenance was allowed to the non-petitioner vide order dated 3 4.1986. This revision petition was heard and decided by the Additional Sessions Judge, Sikar, on March 26, 1987 but the same was dismissed. Hence this criminal misc. petition.On August 24, 1987 it was contended on behalf of the petitioner before this Court that this petition be referred to a larger Bench as similar cases are under consideration before the Division Bench of this Court. Hence this criminal misc. petition.On August 24, 1987 it was contended on behalf of the petitioner before this Court that this petition be referred to a larger Bench as similar cases are under consideration before the Division Bench of this Court. This contention was contested by the learned counsel for the non-petitioner with the submission that the point involved in the case is not similar to other cases, because this case arose prior to the commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for brevity, 'the Act of 1986') and is fully covered by the decision (per G.K. Sharma. J.) of this Court in (1) Ali Mohd. v. Smt. Zaida 1987(1) RLR 156 -1987 Cr. LR. p. 129) . This Court (Per V.S. Dave, J.) in its order dated August 74, 1981, observed that, 'without going into the controversy whether this case would be governed or not, it would be advisable to finally dispose of this petition after the judgment of Full Bench decision which be listed at a very short span of time" and this Court ordered to list this petition after 10th September, 1987.But, subsequently this petition was also listed before this Bench along with the above noted five other petitions wherein the question raised is as to whether after coming into force of the Act of 1986, a Muslim divorced wife is still entitled to maintenance under Section 125, Cr P.C. Thus, with the consent of the parties, this petition was also heard on the aforesaid point along with other cases.Let us narrate some more facts which necessitate for the determination of the controversy involved.The Act of 1986 came into force with effect from May 19, 1986. The order of maintenance in favour of Smt. Raisa (Cr. Misc. Pet. No. 45/87) was passed on April 3, 1986. Revision filed against that order was dismissed on March 26, 1987. Smt. Raisa received the deed of divorce on April 29, 84. The aforesaid divorce at the relevant time was not a circumstance for disallowing the wife, of maintenance allowance under Section 125, Cr. P.C. because, under that Section, even a divorced woman is entitled to maintenance from the husband till she re-marries.In clause (b) of Explanation to Section 125 (1), Cr. The aforesaid divorce at the relevant time was not a circumstance for disallowing the wife, of maintenance allowance under Section 125, Cr. P.C. because, under that Section, even a divorced woman is entitled to maintenance from the husband till she re-marries.In clause (b) of Explanation to Section 125 (1), Cr. P.C. 'wife' has been defined as under : "wife" includes a woman who has been divorced or has obtained divorced from her husband and has not re-married." 'Wife' in clause (b) Explanation to Section 125(l) means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of Section 125. Under these circumstances, in proceedings under Section 125 Cr.P.C, no husband has any right to defend the application for maintenance under Section 125, Cr.P.C on the ground of divorce. The revision petition was decided by the learned Additional Sessions Judge on 26.3.1987 i.e. after coming into force of the Act, 1986. 2. Criminal Appeal No. 315/1987 - Iqbal Khan v. Najma .The family Court by its order dated April 11, 1986 granted maintenance of Rs. 250/- per month to the opposite party, Najma Thereafter, the present appellant, lqbal Khan, moved an application before the Family Court stating that he had divorced the respondent, Najma, on October 0, 1983, the information of which is said to have been given to the respondent-Najma by a registered post, and in the reply to the application under Section 125, Cr.P.C., the appellant had categorically state that he had divorced the respondent. The contention of the appellant before the Family Court was that after divorce the respondent. Najma, was not entitled for maintenance because the provisions of the Act, 1986 shall apply after divorce and therefore, the appellant prayed before the Family Court that the order dated April 11, 1986 be quashed in the changed circumstances. The learned Family Court recorded the statement of the respondent in the absence of the appellant, and after trial, dismissed the application of the appellant vide its order dated July 9, 1987 observing that the factum of divorce is not admitted by the wife, and so. the Court held that no divorce has taken place. It was further observed by the Court that the application under Section 125, Cr. the Court held that no divorce has taken place. It was further observed by the Court that the application under Section 125, Cr. P.C. had been decided prior to the coming into force of the New Act, 1986. Hence this appeal. 3. Criminal Appeal No. 334/1987-Saleem v. Asal Bano .In this case, the order of maintenance under Section 125, Cr. P.C , was passed by the learned Family Court on April 13, 1986. Thereafter the appellant, Saleem, moved an application before the Family, Court alleging therein that the appellant had divorced the respondent. Smt. Asal Bano on June 10, 1985 in the presence of the two witnesses and 'Talaqnama' was sent to the respondent, Smt. Asal Bano which the respondent had refused to receive. In that application it was stated that after the passing of the Act, 1986, divorced wife was entitled to get maintenance only for the period of Iddat and so in the present case, the order of maintenance passed on April 13, 1986 was liable to be modified or set aside. On that application, the learned Family Court issued notice to the respondent Smt. Asal Bano, who in her reply, denied the fact of divorce. The learned Family Court recorded the evidence and on the basis of the appellant's statement recorded on May 14, 1987, it came to the conclusion that in the statement, the appellant stated that he has divorced the respondent and such a declaration of divorce by the appellant operates as a declaration of divorce from the date of his statement. The learned Family Court however, dismissed the application of the appellant on the ground that the order of maintenance was passed on April 13, 1986 i.e. prior to the coming into force of the Act of 1986 and its provisions are not retrospective in nature. The learned Family Court placed reliance upon the decision of this Court in Ali Mohd. v. Smt. Zaida (supra). and hence this appeal. The respondent is not present even after the service of the notice which has been effected on September 4, 1987. 4. Criminal Appeal No. 339/1987, Mohd. Siddique v. Amana .In this case, the order of maintenance was passed on January 27, 1986, on an application moved under Section 125, Cr. P.C. After coming into force of the Act of 1984, the appellant, Mohd. Siddique, moved an application before the Family Court contending that the respondent. 4. Criminal Appeal No. 339/1987, Mohd. Siddique v. Amana .In this case, the order of maintenance was passed on January 27, 1986, on an application moved under Section 125, Cr. P.C. After coming into force of the Act of 1984, the appellant, Mohd. Siddique, moved an application before the Family Court contending that the respondent. Smt. Amana, was not entitled to any maintenance from the appellant after the coming into force of the Act, 1986 because, under this Act, the appellant was bound to pay maintenance for the Iddat period only. The appellant, therefore, prayed that earlier order dated January 27, 1986 be accordingly modified. This application of the appellant was contested by the respondent-wife.The learned Family Court recorded the evidence of the parties. The appellant in his statement recorded on April 14, 1987 deposed that he has divorced the respondent. The learned Family Court on the basis of this statement observed that the factum of divorce as deposed by this appellant in his statement on April 14, 1987 operates as a declaration of divorce. 'taking this view of the matter, the learned Family Court further observed that the divorce has become effective from the date when the appellant deposed about the divorce in his statement before it. The learned Family Court further observed that the order of maintenance was passed in the month of January, 1986, i.e. before the operation of the Act. 1986 and because the provisions of the Act, 1986 are not retrospective in nature, so the order of maintenance passed earlier to it is not affected by this Act. The learned Family Court thus dismissed the application of the appellant moved on January 20, 1987 vide its order dated August 1, 1987. Hence this appeal. 5. Criminal appeal No. 283/1987 - Mohd Hanif v. Abeda Begum .In this case also, the order of maintenance was passed on April 25, 1996 and thereafter the appellant, Mohd. Hanif moved before the Family Court that he has divorced the respondent on April 25, 1987. The information of which was given to the respondent, Smt. Abeda Begum by registered post. In view of the provisions contained in the Act, 1986, the appellant contended that he is bound to pay the amount of maintenance awarded by the Court on April 25, 1986 for a period of Iddat, only. The information of which was given to the respondent, Smt. Abeda Begum by registered post. In view of the provisions contained in the Act, 1986, the appellant contended that he is bound to pay the amount of maintenance awarded by the Court on April 25, 1986 for a period of Iddat, only. This application of the appellant was dismissed on the ground that the provisions of the Act, 1986 are not retrospective in nature, so the orders passed under Section 125, Cr. P.C. are not affected. Hence this appeal. 6. Criminal Appeal No, 483/1986 - Qamaruddin v. Rashida . In this case on the application of Smt. Rashida under Section 125, Cr. P.C the maintenance was granted by the Family Court by an order dated September 26, 1986. This application was contested by the appellant, Qamaruddin, on the mani-fold grounds; and one of the grounds taken by the appellant was that he had divorced Smt. Rashida some 21/2 years before the filing of the reply. In support of his contention, a deed of divorce was filed by him. The learned Family Court recorded the evidence of the parties. The appellant in his statement also deposed that he had divorced the respondent. In view of the facts and circumstances of this case, if the theory of divorce is accepted then this case is to be decided in accordance with the Act of 1986 because at the time when the Act, 1986 came into force, the application under Section 125, Cr.P.C. was pending before the Family Court and as per the provisions of Section 7 of the Act 1986, every application by a divorced woman under Section 125 pending before a Magistrate on the commencement of the Act, 1986 shall be disposed of by such Magistrate in accordance with the provisions of the Act of 1986. 3. Notice was served on the respondent and Mr. B.M. Gurjar filed Vakalatnama on her behalf but, none appeared on the date of hearing. 4. At the time of the arguments, it has not been disputed that the appellant Qamaruddin, in his statement before the Family Court deposed that he had divorced the respondent. Smt. Rashida, and he further stated that a deed of divorce had been sent by a registered post to the respondent. 4. At the time of the arguments, it has not been disputed that the appellant Qamaruddin, in his statement before the Family Court deposed that he had divorced the respondent. Smt. Rashida, and he further stated that a deed of divorce had been sent by a registered post to the respondent. The learned Family Court after discussing the entire evidence on record held that the appellant failed to prove the factum of divorce. Learned counsel for the appellant. Qamar-uddin, submitted that since the appellant had acknowledged divorce in his statement before the Family Court, it operates as a declaration of divorce atleast from the date of his statement. 5. We are of the opinion that since under the Mohammden Law even the oral divorce is permissible and if oral divorce is not held proved, the statement given by the husband in the Family Court will operate as a declaration of divorce from the date of his statement, and the wife is then entitled to maintenance for a period of Iddat, only under the Act of 1986 from her husband who has divorced her. For this proposition, we find support from the following cases: (2) AIR 1939 Ali. p. 512; (3) AIR 1951 Hyd. p. 117; and (4) AIR 1961 Bom. p 121. 6. Under the provisions of the Act, 1986, at the time of deciding application of maintenance, the Court has to see as to whether the divorced woman is unable to maintain herself after the period of Iddat then in that situation, the Court is bound to pass further orders for maintenance after the period of Iddat against the persons mentioned in the Act of 1986. 7. In this view of the matter, the order of the learned Family Court dated September 26, 1987 deserves to be quashed and the appeal is fit to be allowed. But, since we have observed earlier that appropriate order is to be passed by the Family Court for the maintenance of the respondent wife during the period of Iddat and thereafter under the Act. 1986, this is only possible when the case is remanded back to the learned Family Court. 8. Now, we shall examine the legal controversy raised in these cases. 1986, this is only possible when the case is remanded back to the learned Family Court. 8. Now, we shall examine the legal controversy raised in these cases. First question to be considered is, whether the orders passed under the Code of Criminal Procedure, 1973, remain effective even after coming into force of Muslim Women (Protection of Rights on Divorce) Act, 1986; or the aforesaid orders passed under the Code of Criminal Procedure can be modified under Section 127, Cr. P. C. after coming into force of the Act, 1986 ? 9. On behalf of the appellants Sarva Shri Syed Manzoor Ali, Mohd. Gaffar Ali, M. I. Khan, and Nasir Ali Naqvi, the learned Members at the bar contended that the provisions of the Act, 1,86 are retrospective in nature, and though under the Cr.P.C. even a divorced woman was entitled to recover maintenance from her husband till the date of her remarriage but under the Act of 1986, a Muslim divorced woman has been given a right of recovery of maintenance from her husband upto the period of Iddat, only. 10. Learned counsel further contended that if it is held that the provisions of the Act of 1986 shall not affect the orders for maintenance passed under Cr.P.C then it would be discriminatory in nature because a divorced woman who has obtained an order of maintenance in her favour before passing of the Act, 1986, would regularly he entitled to get amount of maintenance from the husband till the date of her re-marriage, under Section 125, Cr.P.C. whereas a divorced woman who did not seek any remedy under Cr.P.C. for maintenance upto the date of passing of the Act, 1986, would be entitled to the amount of maintenance for the period of Iddat only although the claim of both types of women is based on the same footing but the remedies are invoked at different times. 11. Learned counsel then contended that after the decision of the Supreme Court in (5) Mohd. Ahmed Khan v. Shah Bano Begum, ( 1985 (2) SCC 556 ) , a section of Muslim community strongly opposed that decision. Thereafter the Act of 1986 was passed by the Parliament and it was the intention of Parliament in passing the Act, 1966. 11. Learned counsel then contended that after the decision of the Supreme Court in (5) Mohd. Ahmed Khan v. Shah Bano Begum, ( 1985 (2) SCC 556 ) , a section of Muslim community strongly opposed that decision. Thereafter the Act of 1986 was passed by the Parliament and it was the intention of Parliament in passing the Act, 1966. That no discrimination should arise to the divorced women, and the provisions analogous to that of the Muslim personal Law should be incorporated in the Act of 1986. Learned counsel therefore, submitted that in case it is held that the orders passed in favour of the divorced woman prior to the passing of the Act of 1986, are not affected by the Act, 1986 and they would remain executable even after passing of the Act, 1986, then the very purpose of making the Act, 1986 would be frustrated. 12. Next contention of the learned counsel for the appellants is that looking to the provisions contained in Section 2 (a) of the Act, 1986 which defines, divorced woman", the Act 1986 is applicable to the divorced woman before or after passing of the Act 1986. 13. Shri A.K. Bhandari, appearing on behalf of some of the respondents wrangled that the Act, 1986 has got no retrospective effect. Unless the provisions is made retrospective, it cannot be assumed that the provisions of the Act are retrospective in nature In the Act 1086, there is no clause of repeal and/or saving. This, according to Shri Bhandari, shows that it was not intended by the legislature that earlier orders passed in any proceedings under any law shall be affected by the Act. 1986 Shri Bhandari then contended that after passing the Act. 1986, an additional remedy has been given to a woman who has been divorced by her husband. 14. Shri Dalip Singh, learned Advocate, who also appeared as an Intervenor, supported the contentions raised by Shri Bhandari on behalf of the respondents. Both of them have placed reliance on the following decisions (6) Ashwini Kumar v. Arabinda Bose, (AIR 1932 SC 359) ; (7) Ahmedabad M. & C. Printing Co. 14. Shri Dalip Singh, learned Advocate, who also appeared as an Intervenor, supported the contentions raised by Shri Bhandari on behalf of the respondents. Both of them have placed reliance on the following decisions (6) Ashwini Kumar v. Arabinda Bose, (AIR 1932 SC 359) ; (7) Ahmedabad M. & C. Printing Co. V.S.G. Mehta, ( AIR 1963 SC 1436 ) ; (8) Income-Tax Officer v. S.K. Habibullah, ( AIR 1962 SC 918 ) ; (9) Nanak Chand v. Chandra Kishore, ( AIR 1970 SC 446 ) ; (10) Poona Municipality v. Bijlee Products, (AIR 1979 SC 334) ; (11) Ali Mohd. v. Smt. Zaida (Supra) 15. We have given our thoughtful consideration to the arguments advanced by the counsel for both the parties and gone through the decisions referred to above, cited by Shri Bhandari and Shri Dalip Singh and perused the records. 16. Looking to the facts and circumstances, and the arguments advanced at the bar, we are of the view that the real controversy in the instant case, is as to whether the provisions of the Act, 1986, are having retrospective operation or whether the orders of maintenance awarded under Cr. P.C. necessarily require any modification after coming into force of the Act, 1986. 17. Before arriving at the conclusion on the aforesaid controversy, it would be useful to reproduce salutary objects sought to be served by the Legislature by introducing Bill No. 10 of 1986 for enactment of an Act entitled as 'Muslim Women (Protection of Rights on Divorce) Act, 1986. The Bill sought to be introduced in Lok Sabha on the 25 February, 1986 (see The Gazette of India Extraordinary Part II `action 2 dated 25.2.1986) was to protect the rights of Muslim women who have been divorced by or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. "STATEMENT OF OBJECTS AND REASONSThe Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others ( AIR 1985 SC 945 ) , has held that although the Muslim law limits the husband's liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance of the situation envisaged by section 125 of the Code of Criminal Procedure, 1973. Ahmed Khan v. Shah Bano Begum and others ( AIR 1985 SC 945 ) , has held that although the Muslim law limits the husband's liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance of the situation envisaged by section 125 of the Code of Criminal Procedure, 1973. The Court held that it could be incorrect and unjust to extend the above principles of Muslim law to cases in which the divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husband's liability ceases with the expiration of the period of idddat, but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to section 125 of the Code of Criminal Procedure. "2. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has therefore, been taken to specify the rights which a Muslim divorced women is entitled to at the time of divorce and to protect her interests. The Bill accordingly provides for the following among other things, namely:- (a) A Muslim divorced women shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintains the children born to her before or after her divorce such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children She will also be entitled to mahr or dower and all the properties given to her by her relatives friends, husband and the husband's relatives. If the above benefits are not given to her at the time of divorce, she is entitled to apply to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahr or dower or the delivery of the properties; (b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law in the proportions in which they would inherit her property. If any one of such relatives is unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate would direct the other relatives who have sufficient means to pay the shares of these relatives also. But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay. 3. The Bill seeks to achieve the above objects". 18. Before passing of the Act, 1986, in (11) Bai Tabira v. All Hussain 1979 (2) SCC 316 ) , it was laid down that obligation to pay maintenance to a divorced wife is not discharged on making customary payment as required by one's personal law unless such payment is a just substitute for a proper maintenance allowance under Section 125, Cr. P.C. It was further laid down that no husband can claim under Section 127 (3) (b), Cr. P.C. absolution from his obligation under Section 125 towards divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance. The same view was expressed in (12) Fuzlunbi v. K. Khader Vail, ( 1980 (4) SCC 125 ) . In Mohammad Ahmed Khan v. Shah Bano Begum (supra), a constitution bench of the Supreme Court laid down that payment of mahr or dower by husband to the wife did not attract Section 127 (3) (b) and order of maintenance under Section 125 could not be cancelled on such payment. Their Lordships of the Supreme Court quoted certain verses from Quran and observed that there was no conflict between Section 124 Cr. P.C. and Muslim Personal Law on the question of Muslim husband's obligation to provide maintenance for his divorced wife. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. 19. P.C. and Muslim Personal Law on the question of Muslim husband's obligation to provide maintenance for his divorced wife. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. 19. Para 279 of the Mahomedan Law (Text book on Mulla's Principles of Mahomedan Law, by M. Hidayatullah and A. Hidayatullah) says that "after divorce, the wife is entitled to maintenance during the period of iddat". if divorce is not communicated to the wife for acceptance then she is entitled to maintenance until she is informed of the divorce. It is thus clear that the controversy had definitely arisen after the pronouncement of the decision in Shah Bano's case (supra) and a section of Muslim community strongly opposed that decision leading to passing of the Act, 1986. 20. It cannot be disputed that the marriage according to Mahomedan law not a sacrament but a civil contract. All the rights and obligations it creates immediately and, are no dependent on any condition precedent such as the payment of dower by a husband to a wife. Marriage (Nikah) is defined to be a contract which has for its object the procreation and the legalising of children. 21. Dr. Ahmed A. Galwash in his book Religion of Islam says - "Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law naturally recognises the right in both the parties to dissolve the contract under certain given circumstances. Divorce, then, is a natural corollary to the conception of marriage as a contract,..." After quoting from the Quoran and the Prophet. Dr. Galwash concludes that "divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed. the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. When the proposal of divorce proceeds from the husband, it is called 'Talaq", and when it takes effect at the instance of the wife it is called "Khola". Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt to the wife and at the time of Khola she has to surrender to the husband her dower or abandon some of her rights, as compensation. 22. Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt to the wife and at the time of Khola she has to surrender to the husband her dower or abandon some of her rights, as compensation. 22. Yusuf Ali, in his commentary on the Holy Quoran, says : "While the sanctity of marriage is the essential basis of family life, the incompatibility of individuals and the weaknesses of human nature require certain outlets and safeguards if that sanctity is not to be made into a fetish at the expense of human life." 23. Here is a significant verse from the Quoran : "And if he fear a breach between husband and wife, send a judge out of his family. and a judge out of her family if they are desirous of agreement, God will effect a reconciliation between them; for God is knowing and apprised of all". (Ch. 1V, Verse 35) 24. Maulana Muhammad Ali has explained this verse thus : "This verse lays down the procedure to be adopted when a case for divorce arises. It is not for the husband to put away his wife; it is the business of the judge to decide the case. Nor should divorce cases be made too public. The judge is required to appoint two arbiters, one belonging to the wife's family and the other to the husband". These two arbiters will find out the facts but their objective must be to effect a reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed, but the final decision for divorce rests with the judge who is legally entitled to pronounce a divorce. Cases were decided in accordance with the directions contained in this verse in the early days of Islam." 25. In view of the aforesaid recitals made by the eminent jurists on Holy Quoran, it is abundantly clear that a Muslim man who had faith in Islam could not have divorced his wife and divorce was only possible in a very very exceptional circumstance. In this view of the matter, divorce under Muslim law is an exception. In view of the aforesaid recitals made by the eminent jurists on Holy Quoran, it is abundantly clear that a Muslim man who had faith in Islam could not have divorced his wife and divorce was only possible in a very very exceptional circumstance. In this view of the matter, divorce under Muslim law is an exception. It is thus clear that if a person having faith in Islam divorces his wife it shall be assumed that in such a divorce, the husband is not at fault, consequently, he cannot be burdened for the maintenance of his divorced wife more than the period prescribed in his personal law i. e. period of Iddat because according to Fyzee, Iddiat is the term by completion of which a new marriage is rendered lawful. It is a period of continence imposed on a woman of the termination of a marriage in the interest of certainty of paternity during which a woman is suspected to live a life of seclusion and to abstain from certain luxuries. But, subsequently, divorce became common in Muslim society and most of the husbands used their right of divorce as weapon against their wives. This trend might have led to dynamic change in the matter of maintenance in the year 1973 when the Code of Criminal Procedure was enacted and definition of 'wife' was materially changed. At that time, the Legislature might have intended by such dynamic change in procedure of law to put a check on frequent trend of divorcing the wives by the husbands which became common factor because Muslim persons lost their faith and allegiance with the principles of Islam. So, right was assigned to a divorced woman to ask for maintenance upto the period of her remarriage under Section 125, Cr.P.C. Alteration in the order passed under Section 125, Cr. P. C. was also made permissible under Section 127, Cr. P. C. Section 127 (3) (b), Cr. P. C, reads thus : "Alteration in allowance:- 127. (1)-(2) ... So, right was assigned to a divorced woman to ask for maintenance upto the period of her remarriage under Section 125, Cr.P.C. Alteration in the order passed under Section 125, Cr. P. C. was also made permissible under Section 127, Cr. P. C. Section 127 (3) (b), Cr. P. C, reads thus : "Alteration in allowance:- 127. (1)-(2) ... (3) where any order has been made under section 125 in favour of a woman who has been divorced by or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that:- (a) (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order. (i) in the case where such sum was paid before such order, from the date on which such order was made. (ii) in any other case, from the date of expiry of the period, if any. for which maintenance has been actually paid by the husband to the woman". 26. In Shah Bano's case (supra) it was contended on behalf of the husband that after making customary obligation as required by one's personal law, the very order passed under Sec 125, Cr. P. C, was liable to be quashed under Section 127 (3) (b) But this argument was repelled by their Lordships of the Supreme Court and it was observed that payment of mahr or dower by the husband to the wife did not attract section 127 (3) (b) Cr. P.C , and the order of maintenance under Section 125, Cr. P. C. could not be cancelled on that basis. Their Lordships further observed that there was no conflict between the provisions of Section 125 and those of the Muslim personal law on the question of a Muslim husband's obligation to provide maintenance for his divorced wife. 27. P.C , and the order of maintenance under Section 125, Cr. P. C. could not be cancelled on that basis. Their Lordships further observed that there was no conflict between the provisions of Section 125 and those of the Muslim personal law on the question of a Muslim husband's obligation to provide maintenance for his divorced wife. 27. As stated earlier, it was contended by Shri Bhandari on behalf of the wives who are respondents herein and by the intervener Shri Dalip Singh supporting him, that remedy under the Act, 1986 is an additional one to the wife who has been divorced and there s no inconsistency in between the provisions of the Act 1986 and those of Chapter IX of the Code of Criminal Procedure; and to substantiate the aforesaid contention, learned counsel placed reliance on the decision in (13) Bhagwan Dutt v. Kamla Devi, (1975 (2) SCC 36) , wherein it has been held that there is no inconsistency between Act 78 of 1956 (Hindu Adoptions & Maintenance Act, 1956) and Section. 488, Cr. P.C. 1898 (corresponding to Section 125 in the new Criminal Procedure Code, 1973 which came into force on April 1, 1974) - both could stand together. The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus. The law was substantially similar even before and it was never suggested that there was any inconsistency with Section 488, Cr.P.C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. 28. Their Lordships of the Supreme Court in Bhagwan Dutt v. Kamla Devi (supra) further observed as under : "Section 488 is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution, become a hazard to the well-being of orderly society. As against this, Section 23 and other provisions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law." 29. As against this, Section 23 and other provisions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law." 29. Another case cited by Shri Bhandari & Shri Dalip Singh is Nankchand v. Chandra Kishore, (AIR 1970 SC p. 446) , followed by the Supreme Court in Bhagwan Dutt v. Kamla Devi . In Nanak Chand's case (supra), their Lordships observed that Section 4 (b) of the Hindu Adoptions & Maintenance Act (1956) does not repeal or affect in any manner the provisions of Section 488, Cr. P.C. there is no inconsistency between the Maintenance Act and Section 488, Cr. P.C. both could stand together and the scope of the two laws is different. 30. After examining the provisions of Chapter IX of Cr P.C. and the Act, 1986, we are of the view that Section 125, Cr. P.C. entities a divorced woman to get maintenance from her husband until she is re-married and Section 3(1) (a) of the Act, 1986 curtails her said right to get maintenance till the period of Iddat. In this view of the matter, Section 125, Cr. P.C. so far as it had created a right to a Muslim divorced woman to get maintenance from her husband until she is remarried, has been impliedly repealed. That being so, a Muslim divorced woman is no longer entitled to get maintenance from her husband after the period of Iddat as there is no saving clause in the Act, 1986. It would be useful to reproduce Section 3(l) (a) of the Act, 1986- "3 Mahr or other properties of Muslim woman to be given to her at the time of divorce. - (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to:- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". 31. - (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to:- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". 31. Section 4 of the Act, 1986 further provides that notwithstanding anything contained in the foregoing provisions of the Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, be may make an order for granting allowance of maintenance from her other relatives and in their absence from the Waqf Board. It is thus clear that Muslim husband has been fully exonerated from the liability of paying maintenance to a Muslim divorced woman after the period of Iddat. Under Section 25, Cr. P.C. the husband was liable to pay maintenance even after the period of Iddat till the date of her (divorced woman) re marriage, if the Act 1986 would not have been enacted. From a perusal of Section 5 of the Act, 1986, it would be obvious that it strengthens our above view point because, Section 5 of the Act. 1986 says that all the pending applications for maintenance would be decided under Sections 125 to 128, Cr.P C. if both the parties by affidavit or any other declaration in writing in such form as may be prescribed either jointly or separately, declare that they would prefer to be governed by the provisions of Sections 125 to 128, Cr P.C. 32. Similar is the intention obvious from Section 7 of the Act, 1986 which provides that every application by a divorced woman under Section 125 or under Section 127, Cr. P.C. pending before a Magistrate on the commencement of the Act, 1986, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, 1986, be disposed of by such Magistrate in accordance with the provisions of the Act, 1986. 33. It has been wrangled by Shri Bhandari on behalf of the respondents that in the Act, 1986. 33. It has been wrangled by Shri Bhandari on behalf of the respondents that in the Act, 1986. There is no clause of repeal and saving, hence retrospective operation cannot be given to the provisions contained in the Act 1986 till the rights accrued to a Muslim divorced woman under Chapter IX of the Cr. P.C. come to an end, In this connection, Shri Bhandari cited decision in Ahmedabad M & C Printing Co. v. S.G. Mehta, (AIR 1963 SC 1416 (supra) and Ashwini Kumar v. Arabinda Bose ( AIR 1952 SC 369 , (supra) and so also other decisions, as mentioned in earlier part of it, is judgments. 34. Having gone through, anxiously, the decisions cited by Shri Bhandari and Shri Dalip Singh, we are of the view that only two cited decisions viz. Ahmedabad M & C Printing Co. v. S. G. Mehta (supra) & Ashwini Kumar v. Arbinda Bose (supra) are relevant to the present controversy. 35. In Ahmedabad M & C Printing Co. v. S.G. Mehta (supra), their Lordships of the Supreme Court (Per Hidayatullah and Raghubar Dayal, JJ) observed that under ordinary circumstances, an Act did not have retrospective operation on substantial rights which have become fixed before the date of the commencement of the Act, but this rule is not unalterable, The Legislature may affect substantial rights by enacting laws which are expressly retrospective or by using language which has that necessary result, their Lordships added. And this language may give an enactment more retro respectivity than what the commencement clause gives to any of its provisions and when this happens the provisions thus and retrospective expressly or by necessary intendment, operate from a date earlier than the date of commencement and effect rights which, but for such operation, mould have continued undisturbed, their Lordships further added. 36. 36. In Ashwini Kumar v. Arabinda Bose (supra), their Lordships of the Supreme Court while dealing with scope and interpretation of various sections of the Supreme Court Advocates (Practice in High Courts) Act, 1951 & that of Bar Councils Act, 1926, observed as under : "...It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinarily meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws..." The Court further observed thus - "............ The true scope of the enacting clause must, as we have observed, be determined on a fair reading of the words used in their natural and ordinary meaning". 37. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivable within the contemplation of the statute, nor can we read the non obstante clause as specifically repealing only the particular provisions. 38. As stated earlier the Act, 1986 has been enacted to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. This Act, 1986 came into operation with effect from May 9, 1986 after receiving assent of the President of India published in the Gazette of India, Extra ordinary Part II Section 2 of the Act defines 'divorced woman' and iddat period' which are essential for the disposal of these cases. Section 3 of the Act. contains non obstante clause and has got four sub-sections. Sub-section (1) is substantive and that prescribes the entitlement of a divorced woman, section 3 (1) (a) has made a talaqed woman entitled to get maintenance from her former husband for the Iddat period only. Section 1 (b) provides the right of the divorced woman to claim maintenance for her minor children. Section 3 (1) (c) deals with amount of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law. Section 1 (b) provides the right of the divorced woman to claim maintenance for her minor children. Section 3 (1) (c) deals with amount of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law. Sub-section (1) (d) of Section 3 entitles a divorced woman to get all the properties given to her before or at the time of marriage or after marriage by her relations or friends or the husband or any relative of the husband or his friends. Sections 3 (2) and 3 (3) are pertaining to procedure Section 3 (4) of the Act, 1986 provides the procedure in the execution of the order passed under sub-sec. (3) if the order is not complied with by the former husband without sufficient cause. This provision is similar to the provisions contained in section 125 (3) of the Code of Criminal Procedure. Section 4 of the Act, 1986 which is both substantive and procedural, specifies the persons who can be directed to pay the maintenance to a Muslim talaqed woman after the period of Iddat. Section 5 of the Act, 1986 prescribes that the parties may opt to be governed by the provision of sections 125 to 128 of the Code of Criminal Procedure and also provides the procedure to be followed after Each option. Section 7 of this Act provides the mode of disposal of application filed under Section 125 or 127, Cr.P C. pending before a Magistrate to be disposed of in accordance with the provisions of the Act subject to the provisions of section 5 of the Act 39. Under Section 125. Cr.P.C., wife including a divorced woman who had not re-married, and is not able to maintain herself is entitled to get maintenance whereas under the Act. 1986, only Muslim divorced woman who has not re-married is entitled to get maintenance. Under Section 125, Cr.P.C., divorced Muslim woman would get maintenance from her husband until she has not re-married, whereas under the Act, 1986, such a woman can get maintenance only upto the period of Iddat. 40. A comparative lock at the provisions contained in Chapter IX of the Code of Criminal Procedure and those contained in the Act, 1986, would show that there is no saving clause provided under the Act. 40. A comparative lock at the provisions contained in Chapter IX of the Code of Criminal Procedure and those contained in the Act, 1986, would show that there is no saving clause provided under the Act. 1986 by which any order passed in favour of the divorced Muslim woman under Section 125 of the Code of Criminal Procedure could be validated or liability created on the husband in this regard could be held valid or enforceable. 41. Section 125. Cr P.C., entitles a divorced woman to get maintenance from her husband until she is re-married whereas Section 3 (1) (a) of the Act curtails her right to get maintenance till the period of Iddat. In this view of the matter, Section 125. Cr P C. in so far as it had created a right to a Muslim divorced woman to get maintenance until she is remarried, has been impliedly repealed. 42. Under the Act, 1986, husband who has divorced his wife is not under obligation to pay maintenance to such wife after the period of Iddat and such wife has been given a right to claim maintenance from the persons mentioned in section 4 of the Act, 1986 after the period of Iddat. So, responsibility is cast upon the person other than husband to pay the maintenance after the period of Iddat. Having lost her right to get maintenance from her former husband after the period of Iddat she has lost her remedy also as provided under Section 125 (3). Cr. P.C to enforce her said right in case her former husband fails without sufficient cause, to comply with the order of maintenance. Thus if a divorced Muslim woman files a petition under Section 125 (3), Cr P.C. which in substance is a penal provision, it will be an action without remedy. Because after the passing of 1986 Act all the applications under Sections 125 & 127, Cr.P.C. are to be disposed of in accordance with the provisions of the Act of 1986 as is laid down in Section 7 of the Act of 1986. 43. The Act of 1986 as stated earlier, doss not contain any saving clause for the right created or orders passed in favour of a Divorced Muslim Woman. However, the Act, 986 has completely obliterated the right of such woman to get maintenance. 43. The Act of 1986 as stated earlier, doss not contain any saving clause for the right created or orders passed in favour of a Divorced Muslim Woman. However, the Act, 986 has completely obliterated the right of such woman to get maintenance. The repeal without saving such right means that such woman had never acquired such right and in this view of the matter, the said right now cannot be enforced under Section 125 (3) Cr. P C. Therefore, if a Muslim woman divorced prior to coming into force of the Act, in whose favour order of maintenance has been passed and has become final or is pending in revision or in other courts is being challenged by the husband and if such an older is held to be executable then it will be, in our considered view, in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act of 1986 for which it has been enacted. 44. In the result. we allow criminal appeal No. 483/1986 Qamaruddin v. Smt. Rasbida and set aside the order passed by the learned Family Court; and remand the case back to the Family Court with the direction that the application of the respondent be decided afresh according to the provisions of the Act, 1986 treating that the appellant, Qamaruddin, has divorced Smt. Rashida on the day when the statement of the appellant was recorded. 45. S.B. Cr. Misc. Petition No. 405/87 (Abid Ali v. Mst. Raisa Begum) and other connected appeals viz D.B. Cr. Appeal No. 315/87 - Iqbal Khan v. Najma ; D.B. Cr. Appeal No 83/87-Mohd. Hanit v. Abeda Begum ; D.B. Cr. Appeal No. 339/87-Mohd. Siddique v. Smt. Aamna ; and D.B. Cri. Appeal No. 334/87-Saleem v. Smt. Asal Bano) are allowed to the extent that the respondents twivesl (divorced women) are entitled to get the maintenance for the period of Iddat only after coming into force of the Act, 1986, and any proceeding pending for the recovery of maintenance after the period of Iddat and after coming into force of the Act, 1986 are quashed against the appellants husbands. The respondents (divorced women) will be entitled to file separate application under the Act, 1986 for maintenance in case they are unable to maintain themselves after Iddat period against the persons mentioned in Section 4 of the Act, 1986. The respondents (divorced women) will be entitled to file separate application under the Act, 1986 for maintenance in case they are unable to maintain themselves after Iddat period against the persons mentioned in Section 4 of the Act, 1986. However, this judgment would not affect the order of maintenance granted under Section 125, Cr. P.C. to the minor children if any in these cases. *******