Judgment S. H. S. Abidi, J. 1. This revision application has been filed by the husband, md. Arif against the order of the learned S. D. J. M. , Bagaha, granting the maintenance of Rs.200 to his wife Bibi Jamila Khatoon and Rs.100 to her daughter Bibi Kulsum Ara per month. By order dated 2-5-1985 this Court directed him to pay Rs.125 as maintenance per month for both till the disposal of this revision. 2. In her application Jamila Khatoon has said that she was married to the petitioner about 6 years ago. Her dainmohar or dower, which had been fixed at Rs.2,5 0 and one gold mohar, was still unpaid. O. P. No.2, a daughter, was bow from their wedlock, who was then aged about 3 years and lived with her. After sometime the petitioner developed bad habits and started taking wine which was protested by her and so he began to neglect her. It was in the month of October 1981 that the petitioner turned her out from his house and so along with her child (O. P. No.2) she began to live with her parents who are very poor and unable to maintain her and her daughther. At the time of marriage her parents had given one cycle and one Janta watch and ten thousand bricks for the construction of the house to the petitioner but he did not construct the house. Inspite of persuation of the relations and well wisher the petitioner has not taken her back and also not paid her the maintenance. The petitioner had sufficient means, owning 6 acres of good agricultual land. 3. The petitioner in his show cause notice has said that O. P. No.1 is not the legal guardian of O. P. No.2 who is aged about 6 years. Rather he has claimed himself to be the legal guardian of O. P. No.2. It is stated in his show cause that for the last some years there was had relation between o. P. No.1 and his mother, on account of which domestic relation became intolerable and so in the month of October, 1981 he has divorced her. Even after the termination of the marriage the petitioner offered to keep O. P. No.2 with himself. Even after the termination of the marriage the petitioner offered to keep O. P. No.2 with himself. Further the case of the petitioner is that the marriage of O. P. No.1 was performed at Rs.1,001 as prompt dower which was given to her in terms of ornaments and so there is no claim of any dower debt against him. The parents of O. P.1 and her relations are men of means. The petitioner is dependent on his parents, having no power of disposal of the property of his parents. His father had purchased about 8 Kathas of land in his name but the same has been pledged with the State Bank of India against an advance for the purchase of a buffallow, and the petitioner has only 1 Bigha of land over which he has got no power of disposal. 4. Jamila Khatoon (O. P. No.1) examined 5 witnesses whereas her husband-petitioner 4 witnesses. A. W.1 Zakir Hussain, A. W.2 Sheikh Abid, a. W.3 Md. Yusuf, A. W.4 Zamil Ahmad who have said that she was turned out after beating and that it was not correct that Talak had been given to her. She herself is witness No.3. She has said that there was no payment of dower debt at all nor was return of articles.1 Katha of laud has been given to arif by his maternal aunt. Petitioner is the only son of his father and his his three sisters have already been married. On behalf of the petitioner d. W.1 Sheikh Safiullah, who appears to be cousin of the petitioner, has said that a divorce has taken place in October 5 or b days before Dassehra in the year 1981, in the presence of the parents of Jamila Khatoon and that she was given Rs.1,001 as Dain mohar by Arif and her articles were returned to her. Talak has taken place in Panchayat in presence of Sheikh Arfi, Sheikh dukhi and Sabir Firoz besides him. D. W.2 similarly says about Talak and payment of Rs.1,001 in presence of 30-35 persons. According to him talak was pronounced three times orally. D. W.3 Sheikh Dukhi also says that Talak has been pronounced about 2 years ago in the presence of Safiullah and Sheikh Mohiuddin and Rs.1,001 was given the Sheikh Shahbuddin by md. Arif. D. W.2 similarly says about Talak and payment of Rs.1,001 in presence of 30-35 persons. According to him talak was pronounced three times orally. D. W.3 Sheikh Dukhi also says that Talak has been pronounced about 2 years ago in the presence of Safiullah and Sheikh Mohiuddin and Rs.1,001 was given the Sheikh Shahbuddin by md. Arif. The petitioner also says that the divorce took place in October, 1981 and he had paid the dower debt in the shape of ornaments and Talak was not given in the presence of any one of the village. He even did not remember the date and time of Talak which was oral. He also denied that any bricks were given to him, and that he was not a man of good means. Only 9 Katha of land were in his fathers name and he has got 1 Bigha of land. 5. Thus from this entire evidence of the parties, it is clear that : (i) the opposite party has been turned out of her husbands house in october 1981. (ii) no Talaq has taken place in the manner alleged by the husband. He alleges that there was no witness while D. W.2 and 3 stated about presence of witnesses, (iii) she has denied about Talaq and having no knowledge of the same, (iv) knowledge of Talaq comes to her from the written statement (show cause) dated 19-11-1982. (v) there is no written Talaqnama and there is only the show cause dated 19-11-1982 in which Talaq is mentioned to have been given. (vi) she says that her dower was Rs.2,500 and one gold Mohar. She and her witnesses say that the dower amount has not been paid. But he (husband) and his witnesses say about payment. He says about payment of Rs.1001 in the shape of ornaments, while his witnesses say about payment of Rs.1,001 in cash. (vii) she denies about the return of any article given in Jahez, which he alleges to have been done. The learned Magistrate after consideration of these materials passed the impugned order as mentioned above. 6. He says about payment of Rs.1001 in the shape of ornaments, while his witnesses say about payment of Rs.1,001 in cash. (vii) she denies about the return of any article given in Jahez, which he alleges to have been done. The learned Magistrate after consideration of these materials passed the impugned order as mentioned above. 6. The learned Counsel for the petitioner, challenging the said order of the learned Magistrate in this revision, raised the following contentions : (a) The opposite-party has been divorced orally and even if the oral divorce is not proved, yet now she has been divorced, as is mentioned in the show cause dated 19-11-1982 and so divorce is effective from 19-11-1982 when the show cause was filed in the court and she got knowledge of the same, (b) She is a divorcee and she is entitled to the maintenance only for the period of Iddat. (c) She is not entitled to any maintenance beyond the period of Iddat as she has already received her dower which is sufficient for her maintenance. (d) Provisions of Sec.125, Cr. P. C. do not apply to the case of the opposite-party after the enforcment of the Muslim Women (Protection of Right and Divorce) Act No.25 of 1985 (hereinafter to be referred to as the Act) as the said provisions in Sec.125 cr. P. C. stand repealed so far as the Muslim are concerned. (e) After the enforcement of the new Act she has lost all her rights and remedies, if at all available to her under the Code of Criminal procedure and so she has no right to get maintenance from the petitioner. On the other hand learned Counsel for Jamila Khatoon has urged that the petitioner turned her and her daughter out from the house in October, 1981 and since then O. P. No.1 has not been maintained, that she been divorced in the manner alleged and that she got information about Talaq only from the show cause notice and not earlier than that, that. She has not been paid at all her dower debt of Rs.2,500 and one gold mohar, that the articles given by her parent in Jahez have not been returned, the provisions of the new Act are not applicable to her case, that this revision is not at all affected by the new Act and she is still entitled to get maintenance from him under the Code of Criminal procedure till the petitioner complies with the provisions contained in Section (3) (b) of the Code. 7. Under the Mohammedan Law a Talaq may be effected (1) orally (by speaking words) or (2) by a written document called a Talaqnama,. . . . . . . . . . The Talaq pronounced in the absence of the wife takes effect though not communicated to her but for purposes of dower it is necessary that it should come to her knowledge and her alimony may continue till she is informed of the divorce" : (Mullas Mohammedan Law Page 294, 17th Edn. ). Further at Page 295 it was said : "pronouncement of the word Talaq in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of of the wife, results in the dissolution of the marriage. . . . . . . . . . If a man says to his wife that she has been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier. " 8. The Muslim Law provides that a divorced woman is to observe a period of Iddat which is said to be three courses i. e. , three monthly courses. It is incumbent upon her after the Talaq (divorce) or dissolution of the rightful marriage or a semblance of a marriage followed by consummation or even upon the death of the husband. Its purpose is to ascertain the state of the womb of the woman as to whether she is pregnant from her divorcing husband or not. If after divorce she wants to marry again, then it should be certain as to whether she is carrying the child of her former husband. If without observing iddat, she marries again and conceives a child then it will not be certain as to whether the child is from the former husband or the newly married husband. If after divorce she wants to marry again, then it should be certain as to whether she is carrying the child of her former husband. If without observing iddat, she marries again and conceives a child then it will not be certain as to whether the child is from the former husband or the newly married husband. That is why she has to abstain from any sexual meeting with any one after the end of the marital ties with the former husband or on the death of the husband for three monthly courses i. e. , three months and ten days. Its purpose also is to avoid confusion about the parentage of the child. A man can remarry a woman already pregnant from her former husband until the delivey of the child. The woman is not to observe the restrictions of the period of Iddat if she gets information about the Talaq long after the period of Iddat from the date of the Talaq or the death of the husband. If a husband dies during the period of Iddat then the divorce is entitlted to inherit her husbands properties. 9. Mohamedan Law further provides that during the period of Iddat a wife is entitlted to maintenance from the divorcing husband. Tyabji in the principle of Mohamedan Law (2nd Edn ) at Page 337 in Sec.300 mentions : "300. (1) According to Hanafi law. A. wife who is divorced is entitled to maintenance during her iddat whether the divorce is revocable or irrevocable (or triple), and whether or not she is pregnant, unless the marriage has been dissolved for some cause of a criminal nature, originating from the woman. (2) According to Shiah and Shqfil law. A wife who is revocably divorced is entitled to maintenance during her, Iddat but not a wife who is irrevocably divorced ; provided that if, at the time when an irrevocable divorce is pronounced, the wife is pregnant, she is entitled to maintenance during her pregnancy. " Mulla in the Principle of Mohamedan Law (17th Edn.) in Para 270 at Page 272 mentions : "after divorce, the wife is entitled to maintenance during the period of Iddat. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce. " In the case of Aamat Ullah and others V/s. Mt. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce. " In the case of Aamat Ullah and others V/s. Mt. Khatunnisa and others, AIR 1939 All 592, a Division Bench of the Court while referring to Syed Ameer Alis mahomedan Law, Edn.5, Page 479 held "according to the Hanafi doctrines, although an acknowlegment of a talaq, namely an acknowledgment by a man that he had divorced his wife, extracted from him under compulsion, is ineffective ; a lalaq actually pronounced under compulsion is valid. . . . . . . . . . Whilst an acknowledgment extracted from the husband by compulsion whether embodied in writing or not is ineffective, an acknowledgment of talaq made in jest or falsely will take effect judicially though it will not have any force for conscientice. . . . . . . . . . One may reasonably infer from the passage above quoted that if an acknowledgment of talaq is made by the husband the divorce will be held to take effect at least from the date upon which the acknowledgment is made. " In the case of Wahab Ali V/s. Qamro Bi and others, AIR 1951 Hyd 117 at page 118 it was observed that in a proceeding under Sec.488, Cr. P. C. by a Mahomedan wife against her husband for maintenance if the husband states in bis written statement that he had already divorced his wife and the court comes to the conclusion that the divorce period is not proved then such a statement in the written statement itself operates as an expresssion of divorce by the husband and operates as from that moment. Even so in law such a divorced woman is entitled to maintenance during the period of Iddat which is iour months and ten days from the date of divorce. In the case of Md. Even so in law such a divorced woman is entitled to maintenance during the period of Iddat which is iour months and ten days from the date of divorce. In the case of Md. Ali V/s. Fareedunnisa and another, AIR 1970 Andhra pradesh 298, relying upon aforesaid two decisions and also upon a decision of bombay High Court in Chand Bi V/s. Bandesha, AIR 1961 Bom 121 , it was observed : "it is thus manifest that the Mahomedan Law confers a special right on the husband and favours the husband more than the wife giving liberty to the husband not only to divorce the wife orally in the manner provided for under the Mahomedan Law, but also issue a notice or file a written statement in defence to a maintenance claim and where such a statement in writing is made that he had divorced his wile in the past long prior to the action brought by the wife, notwithstanding the denial of the wife, the statement of divorce made either by a notice or in a written statement itself amounts to a declaration of divorce as on that date, on which the said statement was made. When the Mahomedan Law permits such a course of action putting the husband in a privileged position and favours him with a special right in the matter of divorce which right or privilege is denied to his spouse, effect shall be given to it without importing notions of discrimination or the divorce laws applicable to Hindus or Christians. " In the case of Shaikh Jalil V/s. Bibi Sarfunnisa, 1977 Cr LJ 43, a learned single Judge of Patna High Court referring to some of the decisions mentioned above observed : "accordingly, I hold that opposite-party will be deemed to have been divorced by the petitioner since the 7th November, 1973 the day of the show cause was filed on behalf of the petitioner asserting that he had divorced the opposite-party. In view of the aforesaid finding, the opposite-party will be entitled to maintenance only up to the date she cpntitued to be wife of the petitioner and till the expiry of the period of Iddat. In view of the aforesaid finding, the opposite-party will be entitled to maintenance only up to the date she cpntitued to be wife of the petitioner and till the expiry of the period of Iddat. " Mulla at 273 of the book17 Edition referrining to the judgment in Mohammed ali V/s. Fareedunnissa Begum, (70) A. Andh P.298 says : "the husband had served notices on May 12, 1960 and July 16, 1960 stating that he had divorced the wife on the night of the wedding following the view of the Allahabad High Court in Amsatullah v mst. Khatunnissa, (39) A. All 592 based on a principle stated by Macnaghten, the date of the divorce, in the face of the wifes denial, was held to be the date of the notice. Mahomedan Law gives not only the right to the husband to pronounce an oral divorce but also to do so by notice. When such a notice is given it amounts to a divorce. " 10. Thus a woman is entitled to get maintenance even after divorce. If the Talaq is oral and in her presence, then from the date of such oral Talaq, but if the Talaq is in writing and in the form of a notice, then from the date of the notice the divorce becomes effective, Here in this case Jamila Khatoon has said that no Talaq has been given. Even the evidence led by the petitioner-husband does not prove the oral Talaq as said to be given. However, in the show cause dated 19-11-1982 it has been mentioned that Talaq has been given so Talaq is effective from the date of the show cause dated 19-11-1982. Thug she was the wife of the petitioner-husband upto 19-11-1982 and entitled to maintenance as she has been turned out from the house in October, 1981 and on the basis of the evidence she has not received any maintenance. It is after 19-11-1982 that according to Mohamedan Law she is entitled to amount of maintenance for the period of Tddat which, though, she is not liable to observe iddat but she is entitled to receive maintenance till the period of Iddat. 11. Learned Counsel for the petitioner has raised the question that O. P. No.1 Jamila Khatoon has received her dower and so she is not entitled to any maintenance except that for the period of Iddat. 11. Learned Counsel for the petitioner has raised the question that O. P. No.1 Jamila Khatoon has received her dower and so she is not entitled to any maintenance except that for the period of Iddat. This argument raises the question as to whether dower has got any connection with maintenance and thereafter another question as to whether the divorced woman is entitled to any maintenance amount after the period of Iddat or not. 12. As to the nature of dower (mehar) Tyabjis Muslim Law (4th Edn,)mentions : "mehar is an essential incident to the status of marriage. Regarded as a consideration for the marriage it is in theory payable before consummation ; but the law allows its division in two parts, one of which is called prompt payable before the wife can be called upon to enter the conjugal domicile, the other deferred payable on the dissolution of the contract by the death of either of the parties or by divorce. When the Kabinnama does not specify the partion that is prompt and that which is deferred, evidence may be given of the cusmtom or usage of wifes family. " Baillie in his Digest of Mahomaden Law says at Page 91; "dower is not the exchange or consideration given by the man to the woman for entering into the contract ; but an effect of the contract, imposed by the law on the husband as a token in respect for its respect, the woman. . . . Dower being as already mentioned, opposed to the usufruct of the womans person, the right to either is not completed without the other. Hence on the one hand, dower is said to be confirmed and made binding on the husband by consummation or by its substitute, a valid retirement, or by death, which by terminating the marriage puts an end to all the contingenies to which it is exposed, and on the other hand the woman becomes entitled to it as soon as she has surrendered her person. " 13. In Mullas Mahomedan Law (17th Edn.) at page 297 it is stated : "the amount of dower is splited into two parts one is called prompt which is payable on demand and the other is called deferred payable on dissolution of the marriage by death or divorce. " 13. In Mullas Mahomedan Law (17th Edn.) at page 297 it is stated : "the amount of dower is splited into two parts one is called prompt which is payable on demand and the other is called deferred payable on dissolution of the marriage by death or divorce. The portion of the dower may be realised by the wife at any time before or after consummation. Dower which is not paid at once, may for that reason, be described as deferred dower, but if it is postponed until demand by the wife it is law prompt dower. " In the 18th Edn. at page 38 of the same book by Mulla, Mehar (dower)has been defined as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. In Muslim Law in Modern India (1982 Edn. page 60) Dr. Paras Diwan has said "mehar is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife as is evident from the fact that non specification of the Mehar at the time of the marriage does not affect the validity of marriage. " 14. In Abdul Kadir V/s. Salima, 1886 ILR 8 All 149 at pp 157-158 (FB)Mr. Justice Mahmood has observed ; "dower, under the Mohamadan Law, is the sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mantioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of marriage. To use the language of the Hedaya, the payment of dower is enjoined by the law merely as a token of respect for its subject (the woman) wherefore the mention of it is not absolutely essential to the validity of a marriage ; and, for the same reason, a marriage is also valid, although the man were to engage in the contract on the special condition that there should be no dower. . . . . (Hamiltons hedaya by Grady, p.44 ). Even after the marriage the dower may be increased by the husband during coverture. . . . . (Hamiltons hedaya by Grady, p.44 ). Even after the marriage the dower may be increased by the husband during coverture. In this sense and in no other can dower under the Mohamadan Law be regarded as the consideration for the connubial intercourse, and if the authors of the Arabic Text books of Muhammadan Law have compared it to price in the contract of sale, it is simply because marriage is a civil contract under that law. . . . Such being the nature of the dower, the rules which regulate its payment are necessarily affected by the position of a married woman under the Mohamadan Law. Under that law marriage does not make her property, the property of the husband, nor does coverture impose any disability upon her as to freedom of contract. The marriage contract is easily dissoluble and the freedom of divorce and the rule of polygamy place a power in the hands of the husband which the law giver intended to restrain by rendering the rules as to payments of dower stringent upon the husband. No limit as to the amount of dower has been imposed, and it may either be prompt, that is immediately payable upon demand, or deferred, that is payable upon the dissolution of marriage, whether by death or divorce. The dower may also be partly prompt and partly deferred ; but when at the time of the marriage ceremony no specification in this respect is made, the whole dower is presumed to be prompt and due on demand. " 15. In the case of Hamira Bibi and others V/s. Zubaida Bibi and others, 43 ind App.294 : AIR 1916 PC 46 at p.48 it was observed : "dower is an essential incident under the Mussulman law to the status of marriage ; to such an extent that so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation ; but the law allows its division into two parts, one of which is called prompt payable before the wife can be called upon to enter the conjugal domicile ; the other deferred payable on the dissolution of the contract by the death of either of the parties or by divorce. " In the case of Syed Sabir Hussain and another V/s. S Farzand Hassan and others, air 1938 PC 80 at p.82 it was observed : "this Board in 11 MIA 551 and the Full Bench of the Allahabad High court in 8 All 149 have in no uncertain terms accepted these enactments as securing to the Mahomedan community the application of their own law to their domestic relations. The right of the wife to her dower is a fundamental feature of the marriage contract ; it has a pivotal place in the scheme of the domestic relations affecting the mutual rights of the spouses at more than one point : the marriage contract is easily dissoluble and the freedom of divorce and the rule of polygamy place a power in the hands of the husband which the law giver intended to restrain by rendering the rules as to payments of dower stringent upon the husband (per mahmood, J. in 8 All 194 at p.158 ). . . . . . . . . A summary of the results of many decisions was given by Lord parker of Waddington when delivering the judgment of the Board in 43 TA 294 at p.300 an appeal from a Full Bench decision of the high Court at Allahabad. " 16. In the case of Fuzlunbi V/s. K. Khader Vali and another, AIR 1980 SC 1730 at p.1735 it was observed : "secondly we must realise that Muslim Law shows its reverence for the wife in the institution of Mehar (dower ). It is neither dowry nor price for marriage. As explained in an old judgment by Justice Syed Mahmood, Mehar is "not the exchange or consideration given by the man to the woman but an effect of the contract imposed by law on the husband as a token of respect for its subject ; the women". Giving a correct appraisal of the concept of maher the Privy Council once described it as "an essential incident to the status of marriage. " On an other occasion it explained that mehar was a legal responsibility of the husband. These judicial observations evidence a correct understanding of the Islamic legal concept of mehar. Dr, Tahir Mahmood "the Muslim Law of India" p.71. " On an other occasion it explained that mehar was a legal responsibility of the husband. These judicial observations evidence a correct understanding of the Islamic legal concept of mehar. Dr, Tahir Mahmood "the Muslim Law of India" p.71. Later at page 1736 it was held : "mehar as understood in Mahomadan Law cannot, under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connubial relationship. " 17. In the case of Mohd. Ahmed Khan V/s. Shah Bano Begum, AIR 1985 SC 945 : 1985 Cr LJ 875 it was observed : some confusion is caused by the fact that under the Muslim Personal law, the amount of Mehar is usually split into two parts one of which is called "prompt", which is payable on demand, and the other is called "deferred, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Maher is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable on divorce. Even assuming that, in a given case, the entire amount of Mehar is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or indentifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression on divorce, which occurs in Sec.127 (3) (b) of the Code. If Mehar is an amount which the wife is entitled to receive from the husband in consideration of the marriage that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mehar is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. Therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mehar is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all and, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce. later it was observed in paragraph 29 that Mehar is not a sum which under the personal law is payable on divorce. 18. On a summary of all these observations it comes out that under the mohamedan Law a dower is an essential incident and fundamental feature of marriage. It has a pivotal place in the scheme of domestic relations of the spouses at many points. It is not the exchange or consideration given by the man to the woman for entering into the contract of marriage. It is neither the usufruct of the womans person not a consideration for the connubial intercourse nor a price for the marital contract nor a dowry. But it is a payment as a token of respect and reverence to her who has agreed to give the husband all pleasures of life from the time of the marital ties till it is broken by divorce (Talaq)separation in any form or even the death. It is the legal responsibilities of the husband to pay to her the dower and it is not at all concerned with the maintenance of the wife. But these two responsibilities are not inter connected or inter dependent as both have different spheres. Dower is, therefore, an effect of marriage. Even if the dower is not specified, yet the right is created to her on entering the marital bond. Its mention is not absolutely essential to the validity of the marriage. It may be in cash kind or property. No limit as to the amount or dower has been imposed. Dower is, therefore, an effect of marriage. Even if the dower is not specified, yet the right is created to her on entering the marital bond. Its mention is not absolutely essential to the validity of the marriage. It may be in cash kind or property. No limit as to the amount or dower has been imposed. It can be according to the position, status, capacity, will of the parties and also the customs governing them In theory it is payable before the wife is called upon to enter into the conjugal domicile. It is devisible into two parts, one is Mojjal (prompt) which is payable before the consummation of marriage while the other half is Mowajjal (deferred) payable either on the dissolution of the marriage or the death of the husband which are the last limits of the identifiable time of payment. Though at the time of the marriage ceremony there is no specification of the prompt or deferred dower, yet the whole dower is presumed to be prompt and due on demand according to Shia law, and according to Sunni law, part prompt and part deferred. But this payment to her is definitely not a consideration for divorce, or payment for the loss of the connubial relationship. A thing which is paid out of respect to the woman at the time of marriage cannot be a consideration for divorce. Actually divoce is a quite foreign idea to the spouses or any one concerned with them, when the two enter the beautiful and lovely land of married life. Dower is neither a maintenance during the life time of marriage nor after its ending in any form. It is a payment to the woman for respect to her. It is a debt whose payment is neither connected with nor dependent upon divorce except to the extent that divorce, dissolution of marriage or death is the start of the period of limitation for its clearing of. 19. The next question that arises for consideration is as to whether the divorced wife is entitled to any payment, in cash or kind, besides (i) the amount of dower prompt or deferred (ii) the return of the articles given to her by her parents and near ones at the time of marriage or thereafter and (iii) the maintenance during the period of Iddat. Tyabjis Principle of Mohamedan Law (4th Edn.) in paragraph 304 at page 268-269 mentions "on the expiration of the iddat after talaq the wifes right to maintenance cases, whether based on the Muslim Law, or on an order under the criminal Procedure Code. " Mullas Mohammedan Law (18th Edn.) Sec.279 at page 301 mentions : "where an order is made for the maintenance of a wife under Section 481 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of Iddat. The result is that a Mohamedan may defeat an order made against him under Sec.488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her Iddat. " In Muslim Law in Modern India (1982 Edn. page 130) Dr. Paras Diwan says "when a marriage is dissolved by divorce the wife is entitled to maintenance during the period of Iddat. . . . On the expiration of the period of Iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to mantain a wife whom he has divorced. " 20. Further according to the Muslim Law a divorced wife is entitled to maintenance not only during the period of Iddat but also during the period of pregnancy, on account of carrying the child of the divorcing husband in her womb and even after the period of delivery of child if she gives sucking to the child. the Korana Translation by N. J. Dawood says : "lodge them in your homes, according to your means. Do not harass them so as to make their lives intolerable for them. If they are with child, maintain them until the end of their confinement ; and if, after that, they give suck to their children, give them their pay and consult together in all reasonableness. But if yon cannot bear with each other, let other woman suckle for you. " The Bounteous Koran,a translation of meaning and commentary by Dr. If they are with child, maintain them until the end of their confinement ; and if, after that, they give suck to their children, give them their pay and consult together in all reasonableness. But if yon cannot bear with each other, let other woman suckle for you. " The Bounteous Koran,a translation of meaning and commentary by Dr. M. M. Khatib, printed along side the Arabic Text of the Royal Cairo Edition, authorised by Al Azhar at page 749 says : "and those of your women who have despaired of menstruating, if you are in doubt (during the period of waiting period) then your waiting period shall be three months and those too who have not menstruated as yet. And those who are pregnant, their term is when they deliver burden. . . . . And if they are pregnant, then spend on them until they deliver their burden and if they suckle for you, then pay them their wages and consult one another in kindness, but if you both differ then let another woman suckle for him. Let him who is affluent expend from his affluence. And let him whose provision has been straintened (by God) expend from what God has given him. " The Message of the Quran presented in perspective by Hashim Amir Ali Charles e. Tuttle Company, Rutland. Vermont and Tokyo, Japan, says at page 524 : "as for pregnant women, their term shall end with confinement. Let them live where ye live according to your means. Harass them not so as to make their lives a burden to them. If they are with child maintain them till they are confined ; and if, in consequence, they nurse your children, give them their recompense and take ye mutual counsel in all courtesy. But if ye find this difficult engage another woman the child to suckle. " Arthur J. Arberrys The Koran Interpreted at pages 590-591 says : "if you are with child, expend upon them until they being forthwith their burden. If they suckle for you then, give them their wages and consult together honourably If you both make the difficulty, another woman shall suckle for him. Let the man of plenty expend out of his plenty. As for him whose provision is stinted to him, let him expend of what God has given him. If they suckle for you then, give them their wages and consult together honourably If you both make the difficulty, another woman shall suckle for him. Let the man of plenty expend out of his plenty. As for him whose provision is stinted to him, let him expend of what God has given him. Holy Quran containing the Arabic Text with English Translation and com-mentary by Maulvi Muhammad Ali at page 1085 says : ". . and if they are pregnant, spend on them until they lay" down their burden, give them recompense and enjoin one another among you to do good ; and if you disagree, another (woman) shall suckle for him. " Different schools of Muslim Law have given different periods of gestation (period of time during which a woman carries the fetus in her womb i. e. from the time of conception to the lime of delivery Legal and Commercial Dictionary by Shambhu Das Mitra, Calcutta Eastern Law House, 1973 at page 293 ). Hanafi School gives the period as 2 years, Shaffi 4 years, Maliki 5 years, Zahiri 9 montns. These variations thus extending the period of gestation show that the Muslim jurists have been trying to give more benefits for social reasons or on social considerations to the divorcee during pregnancy and thereafter. 21. In the case of Mohd Ahmad Khan (supra) at pages 951-952 AIR the supreme Court had referred to two verses (Ayats No.241 and 242) with their translations. The relevant portions from the are being quoted as follows. : ayat No.241. Wa lil Motallaqatay Malawi Bilmaaroofay Haqqan Alalmutta-queena. Ayat No.242. Kazaleka Yubaiyyanullaho Lakumayatehee Laallakum Taqeloon. Translation of Ayat No.241for divorced women maintenance (should be provided) on a reasonable (scale ). This is a duty on the rightous. (The holy quran by Yusuf Ali, page 96 ). "for divorced women also there shall be provision according to what is fair. (In Muhammed Zafrullah KHon s the Quran page 38 ). The divorced women should also be given something in accordance with the known fair standard. The Meaning of Quram volume I published by the Board of islamic Publication, Delhi. For the divorced woman (also) a provision (should be made) with fairness (in addition to her dower) ; "the Running Commentary of the Holy Quran (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri. The Meaning of Quram volume I published by the Board of islamic Publication, Delhi. For the divorced woman (also) a provision (should be made) with fairness (in addition to her dower) ; "the Running Commentary of the Holy Quran (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri. For divorced women a provision in kindness : a duty for those who ward off (evil ). The meaning of the Glorious Quran text and Explanatory Translation by "marmaduke Pickthall (Taj company Ltd. , Karachi ). " There shall be for divorced women provisions honourable an obligation on the god fearing "the Quran interpreted by Artnur J. Arberry. In the end at page 882 (of 1985 Cr LJ) the Supreme Court observed : "these Ayats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide mainten-ance to the divorced wife. " 22. The word mata used in the Ayat thus denotes that for a divorced women there should be a provision which is fair and according to known fair standard. Treating the women with fairness, and kindness has been the principle in all the faiths including Islam. Even her economic interest is to be safeguarded. Reference may be made to Note No.638 by Abdullah Usuf Ali in Ayat No.128 of Sura Nissa which is as follows : "to protect the womans economic interest various rules are prescribed for dower in marriage. But the sanctity of marriage is greated than any economic interest. Divorce is, on all things, permitted most faithful to God. Therefore, if a breach between husband and wife can be prevented by some economic consideration, it is better to make that concession than to imperil the future of the wife, the children and probably the husband also. Such concessions are permissible in view of the love for wealth in grained in unregenerate men. But a recommendation is made that we should practice self restraint and do what we can do. We can come to an amicable settlement without any economic sacrifice on the part of the women. " When such considerations are there for the economic welfare and interest of the women then a woman cannot be asked to go after divorce with provision and economic safeguard. Can it be said that her interest if not be protected ? We can come to an amicable settlement without any economic sacrifice on the part of the women. " When such considerations are there for the economic welfare and interest of the women then a woman cannot be asked to go after divorce with provision and economic safeguard. Can it be said that her interest if not be protected ? it is for this reason that mata which means some provision reasonable and for which has been ordained by God in this Ayat. According to the rules of Shariyat and Law, either in the shape of cash or kind a divorced woman should get something while parting with the husband. It is by way of a consolation and compensation for the break of the marital tie, which has caused her sufferings in diverse ways including economical and monetary. This is a sort of compensatory, reconcillatory and considerate gesture in the shape of cash or kind which has to be given to her when she becomes stranger to the home and persons that were hers. This gesture reasonable, fair, benevolent, reconciliatory and compensatory has been loved by God. The amount and the measure of such good behaviour has been left to the good sense and large heartedness of the divorcing husband, but it is quite different from maintenance and dower. 23. Besides the above mentioned, there are other Ayats (verses) in the holy Quran which speak of payments and provisions to a divorced women. The translation of Ayat Nos.236 and 237 in the "holy Quran" Text Translation and Commentary A. Usuf Ali (at pages 94 and 95) is as follows : ayat No.236 "there is no blame on you. If ye divorce women before consummation or fixation of their dower, but bestow (a suitable gift) the wealthy according to his means and the poor according to his means : a gift of the reasonable amount is due from those who wish to do the right thing. " Ayat No.237. "and if ye divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (is due to them) unless they remit it or (the mans half) is remitted 269 by him in whose hands is the marriage tie ; 270 and the remission (of the mans half) is the nearest to righteousness. "and if ye divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (is due to them) unless they remit it or (the mans half) is remitted 269 by him in whose hands is the marriage tie ; 270 and the remission (of the mans half) is the nearest to righteousness. And do not forget liberality between yourself for God sees well all that ye do. " In the notes A. Usuf Ali mentions : note No.269. "the law declares that in such a case half the dower fixed shall be paid by the man to the woman. But it is open to the woman to remit the half due to her or the man to remit the half which he is entitled to deduct, and thus pay the whole. " Note No.270. "him in whose hands is the marriage tie : According to the hanafi doctrine this is the husband himself, who can ordinarily by his act dissolve the marriage. It therefore behaves him to be all the more liberal to the woman and pay her the full dower even if the marriage was not consummated. " Ayat No.240 mentions about the maintenance to a widow. Abdullah Usuf ali in Holy Quran at page 96 mentions : "those of you who die and leave widows should bequeath for their windows a years maintenance and residence ; but if they leave the residence there is no blame on you for what they do with them selves provided it is reasonable And God is Exalled in power wise. " As quoted in Mohammad Ahmad KHon s case (supra) the translation of this Ayat in Mohammad Zafrullah KHon s Quran at page 38 is as follows : "those of you, who shall die and leave wives behind them should make a will to the effect that they should be provided with a years maintenance and should not be turned out of their homes. But if thev leave their homes of their own accord you shall not be answerable for whatever they choose for themselves in a fair way. But if thev leave their homes of their own accord you shall not be answerable for whatever they choose for themselves in a fair way. " Abdullah Usuf AH mentions in the note 273 at page 96 : "opinions differ whether the provision (of a years maintenance with residence), for a widow is abrogated by the share which the widow gets (one eighth or one fourth) as a heir (Q. IV 12 ). I do not think it is. The bequest (were made) takes effect as a charge on the property, but the widow can leave the house before the year is out and presumably the maintenance then ceases. " 24. Thus following all these a divorced woman is entitled to a provision by way of compensation on a reasonable scale. She is to be treated with kindness and consideration and provision is to be made for her. Even in the case of a woman who has been married and who has not been touched (meaning no conjugal relation established) nor dower has been fixed and before that she been divorced then a wealthy and also a poor both according to their capacity are to give her treatment with consideration. Similarly if a person divorces a woman without having touched her (meaning no conjugal relation) but dower has been fixed then she is to be given half of her dower. It has been better appreciated that if the woman, whose dower has been fixed and she has not been touched meaning no meeting in private between them, is given divorce then she should be paid not only the half of the dower but the full amount of dower. Thus payment of the dower cannot be treated as a maintenance as it is for the respect to the woman. So even if marriage has not been consummated as in both the cases it behoves a man to be more liberal to the woman. Similarly a woman whose marital ties are dissolved on account of death the widow gets a years maintenance (though authorities differ) but she gets the same. These are the provisions for treatment in material shape towards the woman with fairness kindness and consideration which is nothing but a social, moral and compensatory out look and consideration. 25. Similarly a woman whose marital ties are dissolved on account of death the widow gets a years maintenance (though authorities differ) but she gets the same. These are the provisions for treatment in material shape towards the woman with fairness kindness and consideration which is nothing but a social, moral and compensatory out look and consideration. 25. A statutory right in the shape of Sec.536 of the Oldest Code of criminal Procedure and then in Sec.488 of 1898 Code, was created in favour of a wife to get maintenance from her husband and a child from her father this right to the woman or a child was irrespective of their religion caste creed colour or nationality. It was a social legislation to prevent vagarancy and destitution which are social disorder, menace to the society and problems of law and order to the State at large, rather disease on the body of the society. in the case of Din Mohammad, (1883) ILR 5 All 226, Mahmood J observed : "the right to maintenance conferred by Sec.536 of the Criminal procedure Code is a statutory right which the Legislature has framed irrespective of the nationality or creed of the parties the only condition precedent to the possession of that right in the case of a wife, being the existence of the conjugal relation. " In the case of Jagir Kaur and another V/s. Jaswant Singh, AIR 1963 SC 1520 1963 Cr LJ 413 the Supreme Court observed : "to summarize : Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Sec.488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief. " In the case of Nanak Chand V/s. Chandra Kishore Aggarwal and others, AIR 1970 SC 446 it was said that Sec.488 provides a summary remedy and is applicable to all and has no relationship with the personal law of the parties. 26. In the case of Bhagwan Dutt V/s. Smt. Kamla Devi and another, AIR 1975 SC 83 : 1975 Cr LJ 40 the Supreme Court observed : "sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the. Code of 1898 under the caption "of the maintenance of wives and children". 26. In the case of Bhagwan Dutt V/s. Smt. Kamla Devi and another, AIR 1975 SC 83 : 1975 Cr LJ 40 the Supreme Court observed : "sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the. Code of 1898 under the caption "of the maintenance of wives and children". This chapter in the words of Sir James Fitzstephen provides "a mode of preventing vagarancy or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagarancy, immorality and crime for their subsistence. Thus Sec.488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction ; it is certainly not punitive. " In the case of Zohra Khatoon V/s. Mohd. Ibrahim, AIR 1981 SC 1243 : 1981 cr LJ 754 at page 1245 it was observed : "a perusal of Sec.488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the section. The provisions may not be inconsistent with other parallel Acts in so far as maintenance is concerned, but the section undoubtedly excludes to some extent the application of any other Act. At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes," 27. Thus under the Code of Criminal Procedure right to maintenance is conferred for the period of the married life This is also the interpretation given by the courts in India as said above. At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes," 27. Thus under the Code of Criminal Procedure right to maintenance is conferred for the period of the married life This is also the interpretation given by the courts in India as said above. Under the Mohamedan Law also the maintenance right to a woman is up to the life of marital relations with and also for certain periods i. e. period of iddat for a non-pregnant wife, the period of delivery of child in the case of pregnant woman and Hizanat period, if she is nursing the child of the divorced husband. 28. In the case of Din Mohammad (supra) Mahmood, J. observed ; "the whole of Chapter XLI, Criminal Procedure Code, so far as it relates to the maintenance of wives, contemplates the existence of the conjugal relation as a condition precedent to an order of maintenance and, on, general principles, it follows that as soon as the conjugal relation ceases, the order of maintenance must also cease to have any enforceable effect. " Syed Said V/s. Meeram Bee, 20 Mad LJ 12 : (1909) 10 Cr LJ (502) in re sheikhnmian, AIR 1930 Bom 178 ; Rahimunisan V/s. Mohd. Ismail AIR 1956 Hyd.14 were considered beside the case of Mohammad Ahmad Khan (supra) by the supreme Court in the case of Zohra Khatoon V/s. Mahd. Ibrahim (supra) and then it was held : "thus considering the scheme of Sections 488 and 489 it was generally accepted as good law by all the High Courts that where a woman governed by the Mahomedan Law was awarded maintenance, the same would cease from the date of divorce given by the husband and completion of the period of Iddat. That this the Mahomedan law on the subject admits of no doubt and has not been controverted before us. We would, however refer to a few decisions on this point to support our point of view. " 29. The new Code of Criminal Procedure, which was brought by the indian Parliament on the statute book in 1973, gave a new dimension to this subject of welfare of woman and children. Sec.488 Cr. P. C. took its rebirth in the shape of Sec.125 Cr. P. C. and other sister sections. " 29. The new Code of Criminal Procedure, which was brought by the indian Parliament on the statute book in 1973, gave a new dimension to this subject of welfare of woman and children. Sec.488 Cr. P. C. took its rebirth in the shape of Sec.125 Cr. P. C. and other sister sections. Parents and divorced wife were also brought on the category of persons to be maintained. This provision was enacted to protect the women and children as provided under articles 15 (3) and 39 of the Constitution of India. These new provisions are an improvement upon Sec.488 Cr. P. C. These sections were brought as a measure of social justice. A citizen owes responsibilities to the society where vagarancy and being destitute is a menace, rather of disease. It is to be removed and cured primarily by the citizens themselves, specially by those directly connect-ed and concerned with them and in the case of their failure, then by the State which is the supreme and over all protector of the interest of the citizens. A wife whether divorced or not, a child and old parents are the most immediate and direct concern of the husband, father and children respectively. Thus the provisions in the new Cr. P. C. are humanistic, prophylatic in nature and have social relevance. They are essential to maintain the economic equilibrium in the society. They means emancipation and measures of cure from vagarancy, exploitation, sufferings and social and economic diseases and disorders. It is very difficult for an ex-husband to pay something to his divorcee and similarly it is difficult to a divorcee to accept something from an ex-husband or get something from him even if she wants to get unless there is provision under the law or sanction in the religious Code. The same position will be in the case of a wife, a child and a parent who are being neglected by their immediately concerned. 30. The Supreme Court in various cases has made observations in respect of the nature of this provision. In the case of Capt. Ramesh Chandra Kaushal V/s. Mrs. Veena Kaushal and others, AIR 1978 SC 1807 at page 1809 it was observed ; "this provision is a measure of social justice and specially enacted to protect women and children and falls within the constitution sweep of article 15 (3) reinforced by Article 39. In the case of Capt. Ramesh Chandra Kaushal V/s. Mrs. Veena Kaushal and others, AIR 1978 SC 1807 at page 1809 it was observed ; "this provision is a measure of social justice and specially enacted to protect women and children and falls within the constitution sweep of article 15 (3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not certified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the causethe cause of the derelicts. " Later in the case of Bai Tahira V/s. Ali Hussain Fissalli Chothia and another, air 1979 SC 362 : 1979 Cr. LJ 151 the Supreme Court at page 363 (AIR)observed : "in this appeal, by special leave, we are called upon to interpret a benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees, namely Sec.125 Cr. P. C. welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women the spirit of Article 15 (3) of the Constitution must be light the meaning of the Section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. So Sec.125 and sister clauses must receive a compassionate expansion of sense that the words used permit. " In the case of Subanu alias Saira Banu V/s. A. M. Abdul Gafoor, AIR 1972 sc 1103 at paae 1108 in para 12 the Supreme Court observed : "the Legislature being anxious that for the sake of maintenance the dependents should not resort to begging, stealing or cheating etc. , the liability to provide maintenance for children has been fixed on. the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handi cap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not. the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handi cap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not. In the case of wives, whether their ties of marriage subsist or not, the anxietly of the Legislature is that they should not only not resort to begging stealing or cheating etc. , but they should also not feel compelled for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married. " In the case of Siraj Mohamad Khan V/s. Hqfizunnisa Yasin Khan and anothers, 1981 Cr LJ 1430 the Supreme Court while considering the case of a husband who was unable to perform his marital duties referred about the maintenance and made observations which enlarged the meaning of the maintenance that she needed not only food, clothing and lodging as if she is only a Chatal, but something more. The observations to this effect at page 1434 are as follows : "the Madras decision as well as also the earlier decision seem to have followed the out moded and antiquated view that the object of section 488 was to provide an effective and summar remedy to provide for appropriate food, clothing and lodge for a wife. This concept has now become completely out dated and absolutely archaie. After the international year of women when all the important countries of the world are trying to give the fair sex their rightful place in society and are work for the complete emancipation of women by breaking the old schae and bondage in which they were involved, it is difficult to accept a contention that the salutary provisions of the code are merely meant to provide a wife merely with food, clothing and lodging as if she is only a Chattel and has to depend on the sweet will and mercy of the husband. " 31. Section 125 Cr. P. C. has included in the category of wife a divorced wife also which was not so in the earlier Codes. " 31. Section 125 Cr. P. C. has included in the category of wife a divorced wife also which was not so in the earlier Codes. By this widening of the definition a divorced wife still remains a wife till she remarries. She has been given this status of a wife in spite of the fact that she is not required to live with him under the same roof nor to perform the marital obligations as done by her earlier before divorce. Nor she is required to look after her former husband which she used to do as a non-divorcee. Thus a divorced wife remains a wife only for the purposes of maintenance and for no other purpose till she remarries or she is able to maintain herself. In the case of Most. Zohra Khatoon (supra) it was observed at page 1248 (AIR) : "clause (b) has made a distinct departure from the earlier Code in that it has widened the definition of wife and to some extent, overruled the personal law of the parties so far as the proceedings for maintenance under Sec.125 are concerned. Under Clause (b), the wife continues to be a wife within the meaning the provisions of the code even though she has been divorced by her husband or has otherwise obtained a divorce and has not remarried. " Later in the case of Mohammad Ahmad Khan (supra) at page 879 Cr. LJ in para 9 it was observed : "under Sec.488 of the Code of 1898, the wifes right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the explanation to Sec.125 (1), which provides that wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. " 32. That is the genesis of clause (b) of the explanation to Sec.125 (1), which provides that wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. " 32. A question arises as to whether the inclusion of a divorced woman in the category of a wife is in conflict with any personal law specially of the Muslims under whose personal law the wife ceases to be a wife on Talaq or in any form of dissolution of marriage. As soon above Sec.488 Cr. P. C. has been held, right from the days of Mr. Justice Mahmood, that it is a legislation irrespective of nationality, caste, creed or religion and cuts across the barriers of religion. It has independent sphere of its own and was general in character having no concern with the personal law of the spouses. This section 125 Cr P. C. and the other sections of the new Code by adding the divorced wife also in the category of wife was held in the case of Most. Zohra khatoon case (supra) to some extent overruling the personal law of the parties so far as the proceedings for maintenance under Sec.125 Cr. P. C. are concerned. In the case of Mohammad Ahmad KHon s case supra) at page 879 (Cr. LJ.) in para 7 the Supreme Court observed : "the religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that Sec.125 is a part of the Code of criminal Procedure, not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the shariat, or the Parsi Matrimonial Act. Sec.125 was enacted ia order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child of parent Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 123. What difference would it then make as to what is the religion professed by the neglected wife, child of parent Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 123. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, that they do not supplant the personal law of the parties but equally, the religion professed by the parties or the State of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by Sec.125 to maintain close relatives who are indigent is founded upon the individuals obligation to the society to prevent vagrancy and destitution. That is moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to Sec.125 (1),, which defines wife as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Sec.125 is truly secular in character. " Later it was observed in para 9 : "therefore, a divorced Muslim Woman, so long as she has not remarried, is a wife for the purpose of Sec.125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. " 33. By this widening the definition of wife a Muslim divorcee also like other women is to get maintenance, even after period of Iddat, if she is unable to maintain herself and that too till she remarries or becomes able to maintain herself. This maintainance after Iddat period, though clothed with conditions is an additional benefit to her. The personal law does not prohibit the ex-husband to maintain his divorcee. There is nothing in the Mohamedan Law that if a husband maintains his former wife after divorce then he comits sin or that it is against the basic tenets of the personal law. This provision of additional benefit of maintenance after divorce has been incorporated in the general law of the land which is applicable to irrespective of their personal laws as this provision is in the interest of the society as a whole. This provision of additional benefit of maintenance after divorce has been incorporated in the general law of the land which is applicable to irrespective of their personal laws as this provision is in the interest of the society as a whole. A divorcee is misery becomes the misery of the society. What would be the extent of vagarancy, starvation and suffering in a particular case is a matter of guess. Surely an ex-husband will not like to see his ex-wife, who was once a dear one to him to be in miseries, starvation and sufferings which may even compel her to adopt the flesh trade. If and what not besides and apart from the limited purpose of maintenance with conditions a divorcee would have been given the position of a non-divorcee wife then it Was definitely an interference with all the personal laws and faiths of the humanity. Our secular constitution is a protector of all the faiths and faithfuils and so is the basis of all the statute under it. 34. Under the Mohamedan Law a husband alone has got a right to divorce his wife and that too unilaterally whereas wife has no such right, yet under the Mohamedan law marriage can be dissolved in the form of Khula, mubaraat and Tawfeez. A divorce by Khula is with the consent of the husband and at the instance of the wife in which she agrees to give a consideration to the husband for her release from the marital ties. Thus, she, as a consideration for dissolution of marriage, releases the husband from the liability of her dower debt and other rights and also makes arrangements for the benefit of the husband. Failure on the part of the wife to pay consideration for this sort: of divorce will not invalidate the divorce, but it entitles the husband to sue her for the same. Thus, it is a compensation to him for the separation payable by her. When this sort of seeking divorce by the wife is with the mutual consent and both sides desire separation then it becomes Mubaraat. In this form also she has to release the husband from the liability of dower debt and she has to make provision for him by way of compensation for separation from him. When this sort of seeking divorce by the wife is with the mutual consent and both sides desire separation then it becomes Mubaraat. In this form also she has to release the husband from the liability of dower debt and she has to make provision for him by way of compensation for separation from him. Tawfeez form a divorce is also available which is based on an agreement between or after the marriage gi ing the right to the wife to divorce her husband in a specified and reasonable contingency. Mulla and other authorities have mentioned about such divorces. In the case of M ost. Zohra Khatoon (supra) the Supreme Court at page 1249 (AIR) in paragraph 21 (2) observed : "by an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called khula or Mubarrat. This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarrat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the husband In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called tawfeez (Vide Mullas Mahomedan law, Sec.314, p.300 ). " 35. This mode of divorce is called tawfeez (Vide Mullas Mahomedan law, Sec.314, p.300 ). " 35. But when the husband does not give Talaq to the wife or when any of the said three forms i. e. Khula, Mubaraat and Tawfeez are not available to her, then in a situation, where the husband is traceless, or absconding for a number of years, or has become impotent or is maltreating her or treating her with cruelty and in any case is not giving consent to any divorce, is the wife remediless? Under the Hanafi School of Muslim Law there is no provision for a decree of divorce on these grounds. So the Hanafi jurists applied the principle that when there is hardship in the application of the Hanafi law then the provision, if any, contained in the Maliki, Shafai or Hambali Codes of the Muslim law may be resorted to for the redress of the wrong. The jurists, therefore, found out the solution that the wife should approach the Kazi for dissolving the marriage in the said situations. Now the place of Kazi has been taken over by the judge. Keeping in view these considerations the Dissolution of Muslim marriage Act, 1939 was enacted Sec.2 of the said Act has enu aerated the circumstances and so other sections also, under which she is entitled to seek dissolution of her marriage. Thus the Legislature in the background and beeping in view the provisions of the personal law has given protective and defensive measures to the oppressed women to wriggle out from the oppression In the case of Most. Zohra Khatoon case (supra) the Supreme Court has considered this law at page 1248 (AIR) and observed at follows : "there can be no doubt that under the Mahomedan Law the commonest from of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law. A divorce given unilaterally by the husband is especially peculiar to Mahomedan Law. In no other law has the husband got a unilateral right to divorce his wife by a simple, declaration because other laws, viz, the Hindu Law or the Parsi marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law. In no other law has the husband got a unilateral right to divorce his wife by a simple, declaration because other laws, viz, the Hindu Law or the Parsi marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law. " Before the enactment of the Act of 1939 a woman under pure Mahomedan law had no right to get a decree for divorce from the husband if he refused to divorce her. This was un oubtedly the fundamental concept of divorce as laid down by the Mahomedan Law. As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes impotent or disappears for a large number of years or treates his wife with great cruelty, the wife should have some right to approach the Qazi for dissolving the marriage. Relying on these authorities the legislature intervened and passed the Dissolution of muslim Marriages Act, 1939, under which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in Sec.2 of the Act of 1939. . " 36. Under the Mahomedan Law Marriage is not a sacrament but a contract. It is a contract to live as husband and wife and to serve the best religious social and moral values with certain liabilities and obligations on both of them alike. Such a contract comes to an end in case of death of any one of them on Talaq, Khula, Mubarrat, Tawfeez or any decree under the dissolution of muslim Marriage Act. In case of death of the husband, the widow observes iddat period and gets a provision and maintenance for a period of one year, besides getting inheritance from her deceased husband. Further they are not to be turned out of the house, unless she leaves the home on her own accord. But a divorced woman is not in such a position. She is also to observe iddat period during which she is said to be liable to be maintained. She gets inheritance only if the husband dies during the iddat period, but if he dies after her iddat period, she does not get any inheritance from the deceased-ex-husband. She is not given any maintenance after the iddat period. She is also to observe iddat period during which she is said to be liable to be maintained. She gets inheritance only if the husband dies during the iddat period, but if he dies after her iddat period, she does not get any inheritance from the deceased-ex-husband. She is not given any maintenance after the iddat period. She is to get her dower debt the up to the period of iddat if it has not already been paid. Thus she does not get any benefit after iddat period. When she herself seeks divorce in Khula and allied forms, then she has to forego her dower debt and other dues and she has also to compensate the husband for this divorce. Besides these losses at the end of the marriage life her sufferings is in diverse ways. She loses her social status and position in life and also the pleasure and feelings of living as a wife. She looses the conjugal relationship causing mental and physical shocks. These losses are over and above the loss of means and livlihood. She has no compensation for such losses. A man is compensated when she seeks divorce but a woman cannot claim for compensation if she divorces ; rather she has to forego her claims to compensate the husband. In the marriage contract both are equal and none is subserviant, yet she has been put in disadvantageous position. So a reasonable compensation to her in such situation is the most natural, reasonable and moral outcome. A woman should not be treated as unequal, inferior or as a chattel, rather she has to be treated with equality, and respect. 37. Section 125 Cr. P. C. , though provides to treate the divorcee as a wife for a limited purpose of maintenance till she remarries or she is able to maintain herself, but this is not a maintenance to her for all times to come. This maintenance can be stopped and altered in certain conditions as enumerated in section 127 Cr. P. C whose relevant portions are reproduced below : alteration and allowance "127. This maintenance can be stopped and altered in certain conditions as enumerated in section 127 Cr. P. C whose relevant portions are reproduced below : alteration and allowance "127. (1) * * * * (2) * * * * * (3) Where any order has been made under Sec.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) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage ; (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 ; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. " 38. A division Bench of the Kerala High Court in Kunhi Moyin V/s. Pathumma, 1976 Kerala L. T.87 after quoting Sec.127 (3) Cr. P. C. observed : "this section provides that the Magistrate shall cancel the order for maintenance if any sum under any customary or personal law applicable to the parties is paid on divorce. This Section may be pressed into service by some ingenious husbands to defeat the provisions contained in Sec.125. We would like to make it clear that Sec.127 (3) (b) refers not to maintenance during the period of Iddat or payment of dower. Unfortunately, place of dower is now occupied by dowry, payable by the girls parents, which till 1-6-1961 was paid in public and thereafter in private ; thanks to the Dowry Prohibition Act, 1961. It is, therefore, not a sum of money which under the personal law is payable on divorce as expressed in Sec.127 (3) (b ). Unfortunately, place of dower is now occupied by dowry, payable by the girls parents, which till 1-6-1961 was paid in public and thereafter in private ; thanks to the Dowry Prohibition Act, 1961. It is, therefore, not a sum of money which under the personal law is payable on divorce as expressed in Sec.127 (3) (b ). On the other hand, what is impliedly covered by this clause is such sums of money as alimony or compensation made payable on dissolution of the marriage under customary or personal law codified or uncodified, or such amount agreed upon at the time of marriage to be paid at the time of divorce the wife agreeing not to claim maintenance or any other amount. " A full Bench of the Kerala High Court in Makalakshi Vasantha Kumari V/s. Sankaran Sadasivan, Trivandrum, AIR 1979 Kerala 116 held the decision in the said Kerala High Court case as not good law and agreed with the decision in rukhsana Parvin V/s. Sk. Mohd. Hussein, 1977 Crlj 1041 that if the mahar and maintenance during the Iddat is paid then application under Sec.127 (3) (b) Cr. P. C. is not admissible. But the Supreme Court in the case of Fuzlunbi v. K. Khadirvali, and others (supra) held the full Bench decision as bad in law and upheld the decision of Division Bench in which observations were made by khalid, J. The observations of the Supreme Court at page 1736 (AIR) are as follows : "the language of Sec.127 (3) (b) appears to suggest that payment of the sum and the divorce should be essentially parts of the same transaction so as to make one the consideration for the other. Such customary divorce on payment of a sum of money among the so called lower castes are not uncommon. At any rate the payment of money contemplated by Sec.127 (3) (b) should be so linked with the divorce as to become payable only in the event of the divorce. Mehar as understood in Mohamadan Law cannot under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connibial relationship. Under section 127 (3) (b) of the Cr. Mehar as understood in Mohamadan Law cannot under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connibial relationship. Under section 127 (3) (b) of the Cr. P. C. an order for maintenance may be cancelled if the Magistrate is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce. " 39. In the case of Bai Tahira (supra) it "was observed by the Supreme court at page 366 (AIR) : "the purpose of the payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of section 127 (3) (b) is manifestly to recognise the substitute maintenance arrangement by lump sum. payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for maintenance : to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. The proposition, therefore, is thai no husband can claim under Sec.127 (3) (b) absolution from his obligation under section 125 towards a 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. " Later in the case of Md. Ahmad Khan, the Supreme Court further observed as follows at page 884 (Crlj) : "the provision contained in Sec.127 (3) (b) may have been introduced because of the misconception that dower is an amount payable on divorce. But that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. " The Supreme Court further observed in para 30 : (Page 884 Cr. L. J) "though Bai Tahira was correctly decided, we would like, respectfully to draw attention to an error which has crept in the judgment. But that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. " The Supreme Court further observed in para 30 : (Page 884 Cr. L. J) "though Bai Tahira was correctly decided, we would like, respectfully to draw attention to an error which has crept in the judgment. There is a statement at page 80 (of SCR) : (at page 365 AIR 1979 sc 362 ) of the Report, in the context of Sec.127 (3) (b), that payment of Mahar money, as a customary discharge, is within the congizance of the provision. We have taken the view that Mahar, not being payable on divorce, does not fall within the meaning of that provision. " Further in the full Bench decision of the Kerala High Court in Kamalakshi, which was not affirmed by the Supreme Court, the provision of Travancore ezhava Act 1100. which are applicable locally to the Ezhavas of the area, have been quoted the relevant portions of Sections 8 and 9 of the said Act, as have been mentioned on reproduced below show the customary payments : "that section requires that the petitioner shall in all cases offer in the petition reasonable compensation to the respondent except where such respondent has changed his or her religion. Sec.9 further provides that the reasonableness of the compensation is to be determined by the court after an inquiry into the petition and that it shall in no case exceed Rs.2000 where the petitioner is the husband and Rs, 500 where the petitioner is wife. " Thus from all these it appears that the amount of dower and maintenance during the period of Iddat cannot take the place of payment as provided under section 127 (3) (b ). It is a sum which is payable under the customary law or personal law of the parties. It is a compensation in lump sum which must not be illusory but reasonable and realistic for the purpose of her necessities and maintenance in her life after divorce. It must be a decent wherewithal to her. If such a lump sum is paid by the husband then he is absolved of the liabilities to maintain her. 40. Looking to past 1400 years it will appear that the Muslim Laws have been meeting the changed situations from time to time and from country to country. It must be a decent wherewithal to her. If such a lump sum is paid by the husband then he is absolved of the liabilities to maintain her. 40. Looking to past 1400 years it will appear that the Muslim Laws have been meeting the changed situations from time to time and from country to country. They have not been rigid, rather they have been flexible and responsive to the needs of the hour and demands of social justice and public policy. Muslim community in India is following not only Muslim laws but other secular laws made for alt the citizens besides following the customs and practices from place to place and which have been followed and given effect to by the courts in their application to the Muslims and other citizens. Basic and fundamental, moral and spiritual principles of Islam have been kept intact and have not been allowed to be damaged in responding to the needs of the time which is apparent from the legislative and judicial history. The four known sources of Muslim laws namely Quran, Hadis (Hadith), Ijmaa and Qayas have been giving solutions to the problems arising from time to time. The Qazi (now courts) have been giving interpretations to the Muslim Laws and doing justice and giving reliefs in the particular situations. The Hanafi school of Mohamedan Law has developed a law through the process of juristic reasoning. The Shaafi school opposed the principle of Istehsan (juristic equity) saying that whoever report to Istehsan makes law This school preferred the doctrine of Qiyas (infra) and said that an analogy may be based on Quran or Hadis or Ijmaa (consensus of opinion ). So Ijmaa was the source of law of this school. They recognised only the Sunna (traditions) of the Prophet. The Maliki schools jurisprudence was on the basis of Quran and Hadis (Saying of the Prophet ). They followed Sunna of the prophet and when the traditions conflicted then they depended on Ijmaa of the learneds from Madina and also their judicial practices. The Hambali school followed the principle of Usul. The Shia school which is different from the aforesaid four sunni schools did not accept the traditions unless they came from the house of the Prophet and endorsed by any of their twelve Imams. This school is divided into Akhbari and Usuli. The Hambali school followed the principle of Usul. The Shia school which is different from the aforesaid four sunni schools did not accept the traditions unless they came from the house of the Prophet and endorsed by any of their twelve Imams. This school is divided into Akhbari and Usuli. This school whether Akhbari or Usuli followed if it has approved by their Imams and in the absence of Imams interpretation reason (Aql) is permitted They also followed Ijmaa if the Imam could not be consulted. If the Imam is present then equity, public policy or analogical deductions are not available to them As regards the source of law Quran is the main source of all the schools. After this the second source is Sunna which is followed mostly by the four schools and the Shia school follows the same if it comes from the Imams. Third source of Mahomedan Law is Ijmaa, that is an agreement between highly qualified legal scholars and which is not contrary to quran or Hadis. This doctrine of Ijmaa was followed by the Hanafi school which believes that the law must change with the changing times and also by malikis which also believes that for the new circumstances new decisions are needed. In the process of Ijmaa, Hadis (the sayings of the Prophet) are the main guiding factor. This process was followed by all the four schools. In the development of law through Ijmaa the doctrine of Ishtehar i. e. the exercise of ones reasoning to deduce the provisions of Mahomedan Law is considered. In this also the Quran and Hadis are followed. The development of Islamic law from the days of the first four calips and thereafter has been on the basis of Ijmaa, tshtehar following the Quran and Hadis keeping in view the exigencies of time and public interest. Equity and public policy were also kept in mind. The four sources of Mahomedan law is Qiyas i. e. reasoning by analogy and in that process Hadis of the Prophet is considered. Thus from time to time all the schools of law following their process of reasoning and jurisprudence have been developing the Mahomedan Law in their own way. Equity, public interest, sound precedent and social public policy were to be found in those decisions, pronouncements and opinions of the theologists, Qazis and Muftis and judges. Thus from time to time all the schools of law following their process of reasoning and jurisprudence have been developing the Mahomedan Law in their own way. Equity, public interest, sound precedent and social public policy were to be found in those decisions, pronouncements and opinions of the theologists, Qazis and Muftis and judges. These interpretations from time to time have been within the limits of Quran, hadis, traditions of the Prophets and also keeping in view the approvals of the imams in Sunni and Shia Laws. The analogical deductions, reasonings and juristic pronouncements by the Imams, Muftis and Qazis and other jurists have been meeting the requirements of the changing society within the limits. Thus they have evolved their own doctrines and principles which were rational and just according to them and had been used by their Qazis in the administration of justice also without there being any need of legislation for them. When the place of Qazis was taken over by the Judges they too have been interpreting the law from time to time which is borne out from the judicial records. 41. The Indian Legislature has also been framing laws from time to time without any discrimination within the limits of the personal law and also the constitution to protect the citizens as a whole giving benefit to the needy and doing justice to the society as a whole. When the Privy Council in the case of abdul Fatah V/s. Russomov, (1894) 22 Indian Appeals page 26 declared the Wakf alal Aulad as a settlement for the aggrandisement of the family than the Indian legislature protected the interest and passed the Musalman Wakf Validating act, 1933. The Shariat Act of 1937 was brought to give effect to some of the provisions of Muslim Personal Law relations inter se. Similarly the Dissolution of Muslim Marriage Act, 1939 came in the interest of the women who could not get relief under Talaq, Khula, Mubaraat of Tawfeez. Similarly other codifications and enactments are there like the Hindu Marriage Act, Hindu Adoption Act and Muslim Wakf Acts. Similarly though there was provision under the Hindu maintenance Act (Section 20) and also in the Mohamedan Law as said by Mulla (18th Edn.) in para 371 for the maintenance of the parents, yet the Code of criminal Procedure made the parents also liable to be maintained by the children. Similarly though there was provision under the Hindu maintenance Act (Section 20) and also in the Mohamedan Law as said by Mulla (18th Edn.) in para 371 for the maintenance of the parents, yet the Code of criminal Procedure made the parents also liable to be maintained by the children. In the same way Sec.125 Cr. P. C. and other allied sections were brought in the Cr. P. C. with amended and added provisions of the old Sec.488 cr. P. C. in which a divorcee was also made entitled to maintenance under specified conditions. The Parliament in the same way to protect the rights of such divorced Muslim women enacted the Muslim Womens (Protection of Right on divorce) Act No.25 of 1986 (hereinafter referred to as The Act ). 42. This Act came into force from the 19th of May 1986 and was made applicable to the whole of India except Jammu and Kashmir. A divorced woman was defined us a muslim woman who was married according to Muslim Law and divorced by or has obtained divorce from her husband in accordance with muslim Law. The period of Iddat, which never found any place in any provision of the Codes of Criminal Procedure till now, though this period of Iddat had always been followed in the case of Muslim woman, was mentioned and explained here. In Sec.3 of the Act it has been mentioned that the maher and other properties of the muslim woman are to be given to her at the time of divorce in any form. She is also entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. Maintenance of the children upto the period of two years is to be given to the mother keeping in view the principles of hizanat (for sucking breast-feeding and upkeeping of the child by the mother) and in case during the period of iddat the above mentioned provision as contained in Sec.3 (l) (a), (c) and (d)have not been complied with, then she can apply to a Magistrate for the reliefs contained in Sec.3 (1 ) (a), (b ). (c) and (d) of the Act which shall be disposed of by the Magistrate within a month of the filing of the application and in case it is not disposed of he will have to record the reasons for the same. Sub-section (4) of Sec.3 of the Act makes penal provisions of fine and sentence of one year. In Sec.4 of the Act even the parents and relatives as well as the persons who are entitled to inherit her properties and also the Wakf Board has been made to maintain her under the specified conditions and circumstances detailed in this section. The provisions of Sections 125 to 128 of the new Code of Criminal Procedure (Act No.2 of 1974) could be resorted to if the divorced woman and her former husband file before a Magistrate an affidavit either jointly or separately to be governed by the said provisions. The Central government was referred to frame rules for the purposes mentioned above and lastly in Sec.7 transitional provision has been made that every application by a divorced woman under Sec.125 or 127 Cr. P. C. pending before a Magistrate on the commencement of this Act shall notwithstanding anything contained in that Act and subject to the provisions of Sec.5 of this Act be disposed of by the provisions of this Act. The Central Government has framed rules also under this Act called as Muslim Women (Protection of Rights on Divorce) Rules, 1986. 43. Thus from this Act it is clear that on divorce in any form a Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. In Sec.125 cr. P. C. the liability of the divorcee to be maintained by the former husband arose if he having sufficient means, neglected or refused to maintain his wife i. e. divorced wife who is unable to maintain herself and the alteration or cancellation in the allowance could be made if she remarried or she had received the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce. So in Sections 125 and 127 there were some conditions tor the maintenance, but under Sec.3 (l) (a) of the Act there is no such condition as in Sections 125 and 127 Cr. So in Sections 125 and 127 there were some conditions tor the maintenance, but under Sec.3 (l) (a) of the Act there is no such condition as in Sections 125 and 127 Cr. P. C. As for the divorcee a reasonable and fair provision and maintenance is to be made and then paid to her within iddat period by the husband ; so besides and more than the maintenance for the Iddat period under the Mohamedan Law, a reasonable and fair provision has been added. This provision appears to be an additional benefit like the additional benefit of the maintenance as said in Sections 125 and 127 Cr. P. C. There were certain conditions in Sec.125 Cr. P. C. and allied sections for giving maintenance and also for stopping or cancelling it in certain situations like Jump sum payment under ordinary or personal law whereas in this Act there is no such condition. The purpose for a reasonable and fair provision, as seen in the case of maintenance in the new Cr. P. C. appears to be same like compensation for the loss of the society to the woman and loss of means of subsistence. As seen above the woman under the Quranic law also is to be treated with fairness and considerations in the shape of money and clothes etc. 44. Under the Act the time limit for the payment of such reasonable and fair provision and maintenance is the period of Iddat as after the Iddat period the relation as wife and husband ceases. Further fair and reasonable provison is not for the Iddat period only, as the maintenance for the Iddat period is already provided- This fair and reasonable provision is for the period beyond the period of Tddat. If this reasonable and fair provision had been only for the period of iddat, then the legislature would not have said "reasonable and fair provision and maintenance to be made and paid to her within the Iddat period. " So reasonable and fair provision is in addition to the maintenance during the period of Iddat. If this reasonable and fair provision had been only for the period of iddat, then the legislature would not have said "reasonable and fair provision and maintenance to be made and paid to her within the Iddat period. " So reasonable and fair provision is in addition to the maintenance during the period of Iddat. Further by this Act it has been made mandatory for the husband to pay all her dower debt, which is definitely not a rensonable and fair provision and maintenance, otherwise, in Sec.3 (l) (c) of the Act there would have not been any mention of any maher or dower and further there is no word or in between (a) and (c) which shows that the husband on divorce has to comply with -. the provisions contained in sub-sections (a) and (c) of Sec.3 of the Act. He has also to return all the properties given to her as enumerated therein. So a V husband after divorce has to comply with the requirements in sub-section (a), (c) \ and (d) of Sec.3 of the Act and also sub-section (b) if she is maintaining the child tailing which an application is to be made to the Magistrate within a month for the redress of the wrong. 45. Maintenance has already been mentioned and elaborated from time to time. In Halsburys Laws of England (3rd Edn. Vol.12) at page 290 maintenance is the name given to the weekly or monthly payments which may be ordered on a decree of divorce or nullity to be made for the maintenance and support of the wife during the joint lives of the spouses. Maintenance of the children is a similar provision for their benefit which may be made in proceedings for divorce nullity judicial separation or restitution of conjugal life. In o Neill V/s. Brown, (1961) 1 All ER 571 or England Report 571 at page 573 maintenance means not only to keep in good repair but in efficient working order or in an efficient State. Webster Universal Dictionary defines maintenance at page 847 means of support : livlihood. Baillie Digest of Mohamedan Law mentions at page 446 "appropriate maintenance comprehends food raiment and lodging. Appropriate food, clothing and lodging were held to be the meaning of maintenance in the case of Arunachala V/s. Annadaymmal, AIR 1933 Mad 688 . So food, residence and raiment have been said as the maintenance. Baillie Digest of Mohamedan Law mentions at page 446 "appropriate maintenance comprehends food raiment and lodging. Appropriate food, clothing and lodging were held to be the meaning of maintenance in the case of Arunachala V/s. Annadaymmal, AIR 1933 Mad 688 . So food, residence and raiment have been said as the maintenance. In the case of Her Heghness Maharani Kesarkunverba Saheb of Morvi V/s. The Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Ahmedabad, AIR 1960 SC 1343 at 1346 the Supreme Court observed : "the grant of the village was as much by way of maintenance as was the cash allowance called jiwai. Maintenance must vary according to the position and status of a person. It does not only mean food and raiment amount. " In Bhagwan Dutt V/s. Kamla Das, AIR 1975 SC 83 it was said that the magistrate is to find out as to what is required by the wife to maintain a standard of living which is neither illusory nor penurious but is modestly consistent with the status of family. In the case of Umar Hayat Khan V/s. Mahboobuimissa, 1976 crlj 395 the Karnataka High Court referring to a decision reported in AIR 1958 mysore 128 observed : "again in awarding maintenance under Sec.488 the court should see that the rate is not such as would tempt the wife to permanently live separately from her husband". It was later observed by the said court : "when this observations is applied to the facts and circumstances of this case it would mean that the amount of maintenance to be fixed by the court should be such as would tempt the respondent to remain unmarried at least for long. " With all these it is clear that the maintenance includes provision for food, clothing, residence, medical attendance or treatment if situation arise, being the barest minimum facility for a decent human living and keeping the body in an efficient state. This should be not only illusory but realistic which should salvage the divorce from destitution, although a wife needs something more besides this, as she is not a chattel. 46 As regards the reasonable and fair provision as mentioned above the quranic law has also provided for good and four treatment to the divorcee. It may be according to the standard and status of the husband. 46 As regards the reasonable and fair provision as mentioned above the quranic law has also provided for good and four treatment to the divorcee. It may be according to the standard and status of the husband. The poor and rich both have to bid her goodbye with clothes and money besides the payment of dower money. In Webster Universal Dictionary at page 1141 provision has been defined (3-a) "something provided, brought together, laid up, available for future need ; esp. means of livlihood : to make ample provision for ones wife and family (b) provision against measures, steps taken, to meet some contigency that may arise in the future ; to make provision against attack by air, shortage of coal, enforcing expenses. " Shorter Oxford English Dictionary, Vol.2 at page 609 mentions about provisions as "to supply with provisions or stores. In halsburys Law of England (4th Edn ) Vol.13 at page 484 while dealing with the ancillary release after decree in the chapter of divorce it was mentioned in para 1051. financial provision and property Adjustment. "apart from making provision for maintenance pending suit. Matrimonial Cases Act, 1973 makes far reaching provision as to the long term financial arrangement of the parties, both in respect of the payments to be made periodically by one to the other or to children of the family, and in respect of capital payment known as lump sum payments, and provides for transfers and settlement of property, including variation of marriage settlement. " In the Indian Divorce Act (IV of 1869)applicable to Christians, Sec.36 provides alimony pendente lite to the extent of 1/.) of the income of the husband on the averaga of three years income preceding the order and Sec.37 Provides for payment alimony on the High Court declaring the marriage dissolved or any decree of judicial seperation and that alimony will be such gross sum of money or such sum of money for any term not exceeding her own life time under certain conditions. Under Section 127 (3) (2) the husband is absolved from payment of the maintanance to the wife in future if she is paid a lump sum according to the customary la v or personal law of the parties. This payment should not be a meagre amount but should be a reasonable substitute for the provision for future maintenance. Under Section 127 (3) (2) the husband is absolved from payment of the maintanance to the wife in future if she is paid a lump sum according to the customary la v or personal law of the parties. This payment should not be a meagre amount but should be a reasonable substitute for the provision for future maintenance. In the case of kunhi Moyin V/s. Pathumma case (supra), a division Bench of the Kerala High court which was upheld by the Supreme Court in Fuzlunbis case (supra), it was observed ; "what is impliedly covered by the clause is such sums of money as alimony or compensation made payable on dissolution of the marriage under customary or personal law codised or uncodified or such amount agreed upon at the time of divorce. " In the case of Bai Tahira case (supra) at page 366 para 12 (AIR) it was observed : "the purpose of the payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of section 127 (3) (b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. There must be rational relation between the sum so paid at its potential as provision for maintenance : to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. " 47. In the case of Fuzlunbi case (supra) the Supreme Court observed at page 1736 in para 19 as follows : "the payment of an amount, customary or other, contemplated by the measure must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowances the divorcee may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divorces and Sec.127 (3) (b) takes care to avoid double payment one under custom at the time of divorce and another under section 125. The policy of the law abhors neglected wives and destitute divorces and Sec.127 (3) (b) takes care to avoid double payment one under custom at the time of divorce and another under section 125. " In the case of Thilothama case (supra) a learned single Judge of the Kerala High court observed at page 278 (Cr LJ) in para 11 as follows : "the sum which under any customary or personal law applicable to the parties, was payable on such divorce referred to in Sec.127 (3) (b)of the Code will not take payments of meagre amounts by way of customary or personal law requirement. The provisions will apply so as to enable cancellation of an order passed under Sec.125 only if the sum paid is a reasonable substitute for provision for future maintenance. Such payment may be required by custom or personal law to be paid on divorce ; but it will terminate the liability to pay future maintenance only if it is a capitalised substitute for payment of maintenance periodically. " In the case of Bai Laxmiben V/s. Bharatbhai Vechatbhai Patel and another, 1986 cr LJ 1418, a learned single judge of Gujarat High Court observed at page 1420 in para 7 as follows : ". . The basic principle is that the object of the lump sum payment to be made is to obviate the destitution of the divorcee and to provide her with the wherewithal to maintain herself. As laid down by the Supreme Court, there must be a rational relation between the sum so paid and its potential as provision for maintenance. " ". . . . Whenever in application for maintenance it is contended that because lump sum amount is paid towards the claim of future maintenance and therefore the application is not maintainable, it would be the bounded duty of the court to examine whether the lump sum amount of maintenance mentioned in the deed of divorce or claimed to have been paid otherwise, had any rational connection with the necessities of life to be provided for in future and was it not an illusory amount or was it sufficient amount to maintain herself for the entire life ?" Further at the same page in para 9 it has been observed : "an amount of Rs.901 was paid to the petitioner wife at the time of execution of deed of divorce. By no stretch of reasoning, it can be said that an amount of Rs.901 would be sufficient amout to maintain oneself for the whole life. An amount of Rs.901 would not be even sufficient for maintaining oneself for a period of even one year. The amount of Rs.901 would have been spent on the bare necessities of life in the very first year. By no stretch of reasoning, it can be said that the amount was sufficient to meet with the maintenance liabilities for the entire period of life. The amount of Rs.901 was an illusory amount and both the courts below have come to grossly erroneous finding that the application was not maintainable on account of the fact that an amount of rs.901 was determined as lump sum payment towards future maintenance. " 48. Thus from all these it appears that a reosonable and fair provision for maintenance should not be illusory amount. The sum must have potentiality as a provision for the entire period of life. It should be a capitalised substitute for the maintenance payment. It is virtually a compensation for the dissolution of the marriage contract. Such compensation should not be in disparity with the loss she has suffered on account of the break of the marital ties. It may be for the whole of life or even for a short period till she remarries. One should not loose sight of the fact that in determining such reasonable and fair provisions the standard and position of both the exes should be kept in mind. She must have a decent living according to the status and position of the family. It should not be for a hard life. The amount should not be punitive and also not very illusory. Similarly the condition, status, position and capacity of the husband is also to be kept in mind. A husband must not be made to pay more than his capacity. A situation may arise that a divorced woman may remarry or similarly a position may be there that she cannot remarry. What will be the situation and eventual condition, are also to be kept in mind when judging the amount and extent of the reasonable and fair provision. The act does not contemplate the situation of remarriage of the divorcee |or her becoming able to maintain herself. What will be the situation and eventual condition, are also to be kept in mind when judging the amount and extent of the reasonable and fair provision. The act does not contemplate the situation of remarriage of the divorcee |or her becoming able to maintain herself. It is for the reason that this is a compensatory provision to the wife for the break of the contract of marriage, just as wife at the time of obtaining the dissolution of marriage in the Khula and allied forms releases the husband of her dower and other rights and makes any other agreement for the benefit of the husband. Here in this case of the husband there is no question of foregoing the Dainmahar or other rights by him. So he has to make any other arrangement for the benefit of the wife by way of compensation for his unilateral action of Talaq. 49. The quantum of such provision is a matter for consideration keeping in view the entire set of circumstances of the ex-spouses. No rigid formulate or mechanical calculation can be laid down but sufficient guidelines and Inbuilt safeguards are there if the situation and circumstances of both are considered and the purpose and object of the legislation is not lost sight of. In the case of state of Mysore V/s. M. L. Nagada and Gadag, AIR 1983 SC 762 , the Supreme court observed at page 765 in para 11 as follows : "the question, therefore, is whether there is any guideline for the exercise of this power It is by now well recognised that guideline need not be found in the impugned provision. The same may be collected from the setting in which the provision is placed the purpose for which the Act is enacted and even the preamble of the statute in which the provision is incorporated A legislation or statute is enacted to achieve some public purpose and the policy of law and the objects sought to be achieved can furnish reliable guidelines for the exercise of discretionary power" 50. In the Halsburys Laws of England (4th Edn.) Vol.13 in the divorce chapter dealing with the periodical payments and lump sum payments during the marriage or thereafter the basis of the needs. Principles of Assessment of the payments and other effects have been mentioned at pages 379, 484, 489 and 493 as follows. In the Halsburys Laws of England (4th Edn.) Vol.13 in the divorce chapter dealing with the periodical payments and lump sum payments during the marriage or thereafter the basis of the needs. Principles of Assessment of the payments and other effects have been mentioned at pages 379, 484, 489 and 493 as follows. These matters may be kept in mind though not exactly and similarly while assessing the extent and basis of the maintenance and lump sum payments under the Code of Criminal Procedure and the Act : ". . . . The amount of maintenance pending suit may be agreed between the parties. Formerly it was usual to award an amount which would bring the income of the wife up to approximately one-fifth of the joint incomes ; there is now no hard and fast rule and each case stands on its own merits. The allowance is entirely in the discretion of the court. If the husbands income is very large, the proportion, if the court considers that it is appropriate to approach the case in this way, may be smaller ; but where the means of the parties are very small it may be necessary to ignore all questions of proportion. In addition the court may make an order for the benefit of a child of the family. In general, the wife should not be relegated to a lower standard of living than that which the husband enjoys even pending suit ; equally she ought not to be forced to have recourse to supplementary benefit from the Supplementary Benefits commission unless her husband is living at subsistence level also. Due allowance may be made for the fact that the wife continuous to reside in the matrimonial home. An average of the income may be taken, usually for three years ; the court should, however, consider past earnings. Only as an indication of the respondents future earnings. If the husband is under agreement to invest part of his income in his business or is subjected to other compulsory deductions, that part may be considered as part of his income. . . . . . . . . All the husbands resources, including capital and non-taxable income should be considered. Both husband and wife must disclose any resource, even if it brings in no income. The courts discreration is unlimited notwithstanding the existence of a separation deed. . . . . . . . . All the husbands resources, including capital and non-taxable income should be considered. Both husband and wife must disclose any resource, even if it brings in no income. The courts discreration is unlimited notwithstanding the existence of a separation deed. If the husband is bankrupt without earnings or has no property or income, or has only a very small income, the court may refuse to make an order. . . . . . . . . Potential earning power may be taken into account. At page 489 Principles of Assessment has been given 2 1060. Matters to which the court must have regard. In exercising its powers to make orders for financial provision and for property adjustment. , it is the statutory duty of the court to have regard to all the circumstances of the case including (1) the income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future ; (2) the financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future : (3) the standard of living enjoyed by the family before the breakdown of the marriage ; (4) the age of each party to the marriage and the duration of the marriage ; (5) any physical or mental disability of either of the parties to the marriage ; (6) the contributions made by each or the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family ; and (7) in the case of proceedings for divorce or nullity of marriage, the value to either party of any benefit (for example a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. It is the courts duty so to exercise those powers as to place the parties, so far as is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. All the enumerated circumstances must be taken into account. All the enumerated circumstances must be taken into account. In the end, however, the court must view the situation broadly and see that the financial arrangements it proposes meet the justice of the case ; the result may mean that both the parties will have to cut down their standard of living, but it may be as much as can be done in the circumstances. " Further at page 493 : "1067. Remarriage of wife : Prospects and effect. In making financial provision, the question has been posed whether the prospects of remarriage ought to be taken into account. The statute says in terms that periodical payments ceases on remarriage, but it says nothing about the prospects of remarriage. The question then arises whether the provision for a wife ought to be reduced if she is likely to remarry. So far as the capital assets are concerned, there is no reason for reducing a wifes share ; she has earned it by her contribution in looking after the home and earning for the family. It should not be taken away from her by the prospects of remarriage. So far as periodical payments are concerned, they are to be assessed without regard to the prospects of re-marriage. In the wife in fact remarries, they cease. If she goes to live with another man, without marrying him, they may be reviewed. " 51 Learned counsel for the petitioner argued that with the coming into force of the new Act of 1986 the petitioner has ceased to have any benefit under the provisions of Code of Criminal Procedure of 1973. He has referred to a decision of this Court in Md. Yunus V/s. Bibi Phenkam alias Tasrunisa and another, 1986 BBCJ 736 , where it was held at pages 741 and 742 as follows : "section 125 of the Code entitled a divorced woman to get maintenance from her husband until she is remarried. Sec.3 (1) (a) of the Act curtailed her said right to get maintenance till the period of Iddat only. Sec.3 (1) (a) of the Act curtailed her said right to get maintenance till the period of Iddat only. In this view of the matter Sec.125 of the code so far as it had created right to a Muslim Divorced woman to get maintenance from her husband until she is remarried has been impliedly repealed, so far as the right to get maintenance after the period of Iddat is concerned by this Act, This being so a Muslim divorced woman is no longer entitled to get maintenance from her former husband after the period of Iddat as there is no saving clause in this Act. Having lost her right to get maintenance from her former husband after the period of Iddat she has lost 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 Sec.125 (3) of the Code, which, in substance, is a penal provision. It will be an action without remedy. The Act, as indicated above, does not contain any saving clause, saying any right created or orders passed in favour of a Divorced muslim Woman. Thus, the Act of 1986 has completely obliterated the right of such woman to get maintenance. The repeal without saying such right means that such woman had never such right and in this view of the matter the said right now cannot be enforced under Sec.125 (3) of the Code. Thus, if a divorced Muslim woman divorced prior to coming into force of the Act, in whose favour order of maintenance has been passed and have become final or is pending in revision or other court being challenged by the husband is allowed to get maintenance, it will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act for which it has been passed. " In subsequent paragraphs reliance has been placed upon the judgments in Lallu prasad and another V/s. State of Bihar and another, AIR 1976 Pat 137 ; Sarwan singh and another V/s. Kasturi Lal, AIR 1977 SC 265 ; R. P. Jain and another V/s. State of Bihar, 1977 Cr LJ 1758 ; United Provinces V. Atiqa Begum and others, 1941 FC 16 ; Kamakhya Narain Singh V/s. State of Bihar, AIR 1981 Pat 236 , and the quotations from Maxwell (12th Edn) page 16 which are as follows : "if an Act expired or was repealed it was recorded in absence of provision to the contrary as having never existed. " 52. Sections 3, 5 and 7 of the Act are relevant to be mentioned here which are as follows : "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 Iddat period by her former husband ; (b) where she herself maintains the children born to be before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children ; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at time of her marriage or at any time thereafter according to Muslim Law ; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance mahr or dower or the delivery of properties, as the case may be. (3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that (a) her husband having sufficient means, has failed or neglected to make of pay her within the iddat period a reasonable and fair provision and maintenance for her and children ; or (b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman ; provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or maher or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. " "5. Option to be governed by the provisions of Sections 125. to 128 of act 2 of 1974. " "5. Option to be governed by the provisions of Sections 125. to 128 of act 2 of 1974. If, on the date of the first hearing of the application under sub-section (2) of Sec.3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration ih the court hearing the application. The Magistrate shall dispose of such application accordingly. " "section 7. Transitional provisions. Every application by a divorced woman under Sec.125 or under Sec.127 of the Code of criminal Procedure, 1973 (2 of 1974), pending before a Magistrate on the commencement of this Act, shall, notwithstanding anytning contained in that Code and subject to the provisions of Sec.5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act. " This Act has come into force on the 19th of May 1986. So every application by a divorced woman under Sections 125 or 127 of the Code pending before a magistrate on the commencement of this Act, shall notwithstanding anything contained in that Code and subject to the provisions of Sec.5 of this Act be disposed of by such Magistrate in accordance with the provisions of this Act. This transitional provision does not mention about any judgment and order already passed or any proceeding having ended or is pending in appeal or revision before a higher court ; rather these provisions have not been made applicable to them. This Act has been made applicable only if any application under sections 125 or 127 of the Code is pending before a Magistrate. Provisions under sections 125 to 128 will be resorted to if both the parties to such proceeding declare by affidavit or any other declaration in writing for the hearing and disposal of the application under the said Code. 53. Provisions under sections 125 to 128 will be resorted to if both the parties to such proceeding declare by affidavit or any other declaration in writing for the hearing and disposal of the application under the said Code. 53. When a new Act or any amendment in an existing law is brought into effect and both of them operate in the same sphere then many questions arise ; what is the necessity and object of the change and what is the effect of the amendment ; as, if there had not been different objects then there was no necessity for a change. Further how far the repeal of any provision is there ; whether the repeal of any provision is in express term or is implied. Whether the new provisions have any retrospective operation and if so to what extent ; and also it is to be seen as to whether the old and the new Act can stand together and if not then can there be harmonisation between the two and if it is not possible, how far the old one goes away. Further how far the old rights which have accrued under the old statute are affected whether they are maintained or taken away by the new provision. Further how far the judgments and decrees are affected specially when the matter is pending in appeal or revision or in any such form as provided under the law. 54. Whenever an act is repealed or re-enacted or a new Act is brought into effect with reference to a particular subject-matter there are bound to be modifications and changes. These changes are necessitated with the changed circumstances and the meeting of the requirements of the changed circumstances is the object of the new enactment. If those objects are not fulfilled the purpose of the change is frustrated. In this way the old Act may be changed, modified or repealed wholly or partly by the letter Act. This repeal may be express or implied. In the case of United Provinces V/s. Most. Atiqua Begam, AIR 1941 FC 16 at p.31 it was observed ; "one must, not, however, overlook the important provision that the previously existing law must in any case continue in force, until altered, repealed or amended. This repeal may be express or implied. In the case of United Provinces V/s. Most. Atiqua Begam, AIR 1941 FC 16 at p.31 it was observed ; "one must, not, however, overlook the important provision that the previously existing law must in any case continue in force, until altered, repealed or amended. Unless therefore, there is an Act which actually alters, repeals, or amends it, that law must, in view of the provisions of Sec.292 continue in force and cannot be considered as non-existent. Those provisions not merely preserve such laws but keep them in force until actually altered, repealed or amended. But, it is not absolutely necessary that a statute must be repealed by express language, e. g. , shown as repealed in an attached schedule. Repeal, and certainly alteration or amendment, can be effected by necessary implication also. When two Acts are clearly inconsistent with or repugnant to each other, the former will be deemed have been impliedly repealed or amended, as the last expression of the will of the Legislature must always prevail. But they must really be irreconcilable with each other. Two negative enactments need not, however, be contradictory. An earlier statute expressed in negative language may be included in or absorbed by a later statute expressed in a similar negative language, but with a wider scope. The former in such a case would not be repealed nor even necessarily altered by the latter, as they both can stand together, but it can be said to have been amended. " In the case of Om Prakash v, State of U, P. , AIR 1957 SC 458 , the supreme Court on another point quoted with approval that decision in the State V/s. Pandurang Baburao, AIR 1955 Bom 451, where the f. D. had observed at page 453 in para 6 : "the court never looks with favour upon the suggestion that there is an implied repeal and the inclination of the court will always be against the repeal of an earlier statute when the Legislature has not expressly done so. " 55. In the case of R. P. Jain V/s. State of Bihar, 1977 Cr LJ 1758 a learned single Judge of this Court at page 1761 observed : "it is one of the cardinal principles of interpretation of statutes that a repeal means a complete obliteration, of the Act repealed unless it is otherwise expressed. " 55. In the case of R. P. Jain V/s. State of Bihar, 1977 Cr LJ 1758 a learned single Judge of this Court at page 1761 observed : "it is one of the cardinal principles of interpretation of statutes that a repeal means a complete obliteration, of the Act repealed unless it is otherwise expressed. Say, for example if it is laid in the repealed act itself that "the expiry of this Act shall not affect the operation thereof as respects things previously done or ommitted to be done, the rights and the remedies contained under the repealed Act would continue, or again if the repealing Act itself provides a saving clause, saving actions taken after the repeal of an Act, the action taken would continue to be valid and necessarily, therefore, the right would continue. The Supreme Court in the case of S. Krishnan V/s. State of Madras, AIR 1951 SC 301 : 52 Cri LJ 1103 has observed that (at p.304 ). . . . . . . The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. . " An identical view has been expressed in another decision of the Supreme court in the case of Gopi Chand V/s. Delhi Administration, AIR 1959 SC 609 : 1959 Cri LJ 782. While reiterating the observations made in S. Krishnan case (supra) their Lordships observed that (at pp.615, 616) ". . . It is true that the legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision and the effect of such a saving provssion is in some respects similar to the effect of the provisions of Sec.6 of the general Clauses Act. . . . . . " Their Lordships, however, further observed ". . . . Since the impugned Act does net contain an appropriate saving section the appellant would be entitled to contend that after the expiration of the Act, the procedure laid down in it could no longer be invoked in the cases then pending. . . . . . " 56. . . " Their Lordships, however, further observed ". . . . Since the impugned Act does net contain an appropriate saving section the appellant would be entitled to contend that after the expiration of the Act, the procedure laid down in it could no longer be invoked in the cases then pending. . . . . . " 56. In the Craies on Statute Law (17th Edn.) by S. G. G. Edgar it has been said : "in the case of statutes passed about the same time the question may arise whether they can be read together and the later taken as explaining, and not repealing, the earlier Act. (at p.348 ). It is now usual to annex a repeal shedule to all Acts which considerably alter the statute law, by which means many doubts as to the inconsistency of enactments are settled by Parliament. In some cases a provision is inserted to the effect that "all provisions inconsistent with the Act are repealed (at p.350 ). To constitute an express repeal there must be not only a reference to the prior Act, but also the use of words apt to effect its repeal, (at p.351 ). The effect of a repeal before 1890 without any express savings was thus stated by Tindal, C. J. , in Kay V/s. Goodwin where he said ; i take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed ; and it must be considered as law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. " And in Surtees V/s. Ellison, Lord Tenterden said : "it has long been established that when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. " So an offence committed against a penal act whilst it was in force could not be prosecuted after the repeal, of the statute ; nor could pending proceedings be further prosecuted of the repeal, even to the extent of applying for a certificate for costs. " (at p.351 ). " So an offence committed against a penal act whilst it was in force could not be prosecuted after the repeal, of the statute ; nor could pending proceedings be further prosecuted of the repeal, even to the extent of applying for a certificate for costs. " (at p.351 ). In Acts passed in or since 1890 certain savings are implied by statute in all cases of express repeal, uniess a contrary intention appears in the repealing Act. They are as follows : "the mere repeal does not Revive anytning not in force or existing at the time when the repeal takes effect ; or affect the previous operation of any enactment so repealed, or anything duly done or suffered under any enactment so repealed ; or affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed ; or affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed ; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid ; and any such investigation, legal proceedings, or remedy may be institut-ted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed. " (at p.325 ). But where under the Agricultural Holdings act, 1908 a tenant had become entitled to compensation by his landlords having given him noiice to quit, it was held that he had acquired a right to compensation which was not lost by the repeal of the Act before an award of compensation had been made and that he was entitled to continue the proceedings necessary for its recovery, (at p, 353 ). And that the repeal did not prevent the bringing of an action for a cause of action which had accrued before the repeal. A "contrary intention" such as is contemplated by the section as being sufficient to prevent the preservation of a right or privilege acquired or secured under a repealed Act may arise from necessary implication and "the full iegal effect of repeal as stated in Kay V/s. Goodwin must follow, viz, that the Act is taken to have been obliterated from the statute-book, where. . . . . . . , the action was not commenced, prosecuted and concluded while the Act of 1920 was in force, (at p.353 ). . In some cases an amending Act has been held, by necessary implication, to continue certain essential provisions in repealed Act, (at p.354 ). . . . Where an Act confirming jurisdsction is repealed by a later Act containing a saving clause to the effect that the repeal shall not affect any jurisdiction created by the repealed Act, that jurisdiction, in the absence of inconsistency between the two Acts, should be treated as continuing notwithstanding the repeal. " 57. In the case of Keshavan Madhava Menon V/s. The State of Bombay, air 1951 SC 128 in the minority judgment Mr. Justice Fazal Ali, J. referred to some of the above noted observations of Craies and thereafter referred to crawford on statutory construction dealing with the general effect and repeal of an Act in America at page 131 as follows : "a repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon. As a result, such a repeal, without a saving clause, will destroy any proceeding, whether not yet begun, or whether pending at the time of the enactment of the repealing Act. not already prosecuted to a final judgment so as to create a vested right, (pp.599-600 ). " Later at page 132 again referred to Crawfords book : "due to the numerous troublesome problems which constantly arose w th the repeal of Statutes, as will as to the numerous cases where hardship was caused, Statutes have been enacted in several States expressly providing that the repeal of a Statute shall not effect any rights, causes of action, penalties, forfeitures and pending suits, accrued or instituted under the repeated Statute. " His Lordship further observed at page 132 : "in India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in Sec.6 of Act 1 (1) of 1868. This provision was further elaborated by Sec.6, General clauses Act of 1897 which is on the same lines as Sec.38 (2), interpretation Act of England. This provision was further elaborated by Sec.6, General clauses Act of 1897 which is on the same lines as Sec.38 (2), interpretation Act of England. The position, therefore, now in india as well as in England is that a repeal has not the drastic effect with it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in those enactments to counteract that effect. " 58. Mr. Justice S. R, Das in the majority judgment referring to the powers of the President under Article 372 (2) to adapt a modified existing laws by way of repeal or amendment observed at page 129 : "it is, therefore, clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. . . . " Later at page 130 observed : "therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the data of the Constitution. " 59. Thus though a repeal means a complete wiping out of repealed Act from the Statute book, but it does not imply necersarily the undoing of the acts already done, objects already achieved and the rights already accrued. Repeal will mean that in future the rights and liabilities will not accrue and the rights and obligations already achieved or acquired will not be killed after repeal. If the intention is to the contrary is not there, then such laws are alive for the past transactions and the rights and liabilities accruing before the date of enforcement of the new Act, Such a Drastic operations of the repeal law cannot be there. If the intention is to the contrary is not there, then such laws are alive for the past transactions and the rights and liabilities accruing before the date of enforcement of the new Act, Such a Drastic operations of the repeal law cannot be there. However, if the legislature has an intention to the contrary then there should be a specific provision in the repealing Act that whatever has been done under the repealed Act will be deemed to have been undone. This provision should be either express or implied from the language. Unless the specific provision express or implied is there, the past effect and operation of the repealed Act in respect of the transactions and actions done in the life time of the repealed Act will not be obliterated. 60. A repealing statute or a new Act comes into operation only from the date of its coming into force and it is not made applicable from back date unless the legislature in its wisdom and considering the circumstances of the case so provides, otherwise every statute is deemed to be prospective and not retrospective. In the case of Keshavan Madhava Menon (supra) the Supreme Court observed at page 130. "every statute is prima fade prospective unless it is expressly or by necessary implications made to have retrospective operation. " In the case of Shyabuddinsab Mohidinsab Akki V/s. Gadag Betgeri Municipal borough and others, AIR 1955 SC 314 at 319-320 the Sapreme Court in para 12 observed : ". . . No authority has been cited before us in support of the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings also, it cannot affect such proceedings. There is clear authority to the contrary in the following dictum of Lord Reading, C. J. , in the case of the King V/s. Shuthampton Income-tax Commissioners ; Ex-pane W. M. Singer, 1916-2 KB 249 at p 259 (A ). " "i cannot accept the contention of the applicant that an enactment can only take away vested rights of action for which legal proceedings have been commenced if there are in the enactment express words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. " "i cannot accept the contention of the applicant that an enactment can only take away vested rights of action for which legal proceedings have been commenced if there are in the enactment express words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute. " ". . . . In every case the language of the amending statute has to be examined to find out whether the legislature clearly intended even pending proceedings to be affected by such statute. . . . it is the duty of courts to give full effect to the intentions of the Legislature as expressed in a statute. " In the case of Katikara Chintamani Dora and others V/s. Guatreddi Annamanaidu and others, AIR 1974 SC 1069 at page 1079 in para 47 the Supreme Court observed : "it is well settled that ordinarily, when the substantive law is altered during the pendedcy of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights, (Maxwell on Interpretation, 12th Edn.220 ). That is to say in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed," In the case of Jose Da Costa and another V/s. Bascora Sadashiva Sinai Nareornin and others, AIR 1975 SC 1843 at 1849 in pata 28 the Supreme Court held : "before ascertaining the effect of the enactments aforesaid passed by the central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well established principles. The first is that "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment" See Delhi Cloth and General Mills Co. Ltd. V/s. Income-tax Commissioner, 54 Ind Appl 421 : AIR 1927 PC 242. " A learned Single Judge of Rajasthan High Court in the case of Soni V/s. Dhannaram, 1981 Cr LJ 547 holding that no doubt, the golden rule of the construction is that in the absence of anything in the new enactment to indicate to the contrary, it cannot be so construed as to alter the law which was applicable when the action was commenced, held that this proposition was enunicated in the two authorities. Jase Da Costa (supra) and Katikara Chintamani Das (supra ). But this principle is subject to certain exeptions as observed in those authorities and the legislature has the power to effect such rights even in pending proceeding and that there is no absolute rule of inviolability of substantive or vested right and that if the new law expressly or by clear intendment takes away such rights or creates new obligations, then it can even affecs the right in pending proceeding. He subsequently referred to and relied upon the decisions in Shyabuddiusab Mahidinsab Akki (supra) and Dayawati (supra ). 61 In the new statute or amending Act a non-obstante clause is also incorporated with the purpose of overriding the provisions existing earlier when two or more laws operated in the same field and that obstante clause is also to be followed just as in a repealing statute, express or implied provision is made for the undoing of whatever has been done or achieved under the repealed Act. In the case of Lallu Prasad V/s. State of Bihar, AIR 1976 Pat 137 a Division Bench of this Court observed at page 140 : "the very purpose of non-obstante clause is that that provision shall prevail over any other provision and that other provision shall not be of any consequence. In case there is any inconsistency or a departure between a non-obstante clause and other provisions, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over the other clauses. Even if we go by a dictionary sense, the eapression notwithstanding implies that other provisions shall not prevail over the main provision. Even if we go by a dictionary sense, the eapression notwithstanding implies that other provisions shall not prevail over the main provision. " In the case of Sarwan Singh and another V/s. Kasturi Lal, AIR 1977 SC 265 at 274 in para 20 it was observed : "when two or more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose ot the laws under consideration. " Sec.14 of the Railway Property (Unlawful Possession) Act, 1966 s?ys that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. In the case of balkishan A. Devidayal V/s. State of Maharashtra, AIR 1981 SC 379 : 1980 Cr LJ 1424 (Para 33) the Supreme Court observed : "section 14 makes it clear that. the provisions of the Act shall override all other laws. This means that if there is anything in the 1966 Act which is inconsistent with the Code, then on that point the 1966 Act will prevail and the application of the Code pro tanto will be excluded. The most important example of such exclusion, as already noticed, is to be found in Sec.5 of the 1966 Act which makes an offence under this act non-cognizable, notwithstanding anything in the Co. de This clearly shows that the provisions of the Code cannot proprio vigore apply to an enquiry conducted under Sec.8 (1)of the 1966 Act by an officer of the Force. Further, Sec.6 of the 1966 act empowers an officer or member of the Force to arrest without a warrant and without an order of the Magistrate any person concerned or reasonably suspected of being concerned in an offence under the 1965 Act. This again is contrary to the scheme and content of the Code which must give way to the 1966 Act in this _ matter. " 62. The courts have always been holding that the new legislation will prevail over the old and earlier legislation Craise on Statute Law at pages 337 and 3 38 has said that a later Act overrides an earlier one. " 62. The courts have always been holding that the new legislation will prevail over the old and earlier legislation Craise on Statute Law at pages 337 and 3 38 has said that a later Act overrides an earlier one. In the case of Sarwan singh case (supra) it was observed in para 21 : "for resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. " Similarly there is the principle generalia specialibus non-derogant, that is a special law will prevail over the general law. As held in the case of Aatna improvment Trust V/s. Lakshmi Deri, 1963 SC 1077. The Supreme Court in the case of J. K. C. S. and W, Mills V/s. State of U. P. , AIR 1961 SC 1170 observed as follows in para 9 : "we reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one act and the special provision in another act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men aad women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. " In the case of The Workmen V/s. Bharat Coking Coal Ltd. , AIR 1978 SC 979 it was said by the Supreme Court at page 981 (para 17): "section 17 is a special provision relating to workmen and their continuance in service notwithstanding the transfer from private ownership to the Central Government or Government Company. " In the case of The Workmen V/s. Bharat Coking Coal Ltd. , AIR 1978 SC 979 it was said by the Supreme Court at page 981 (para 17): "section 17 is a special provision relating to workmen and their continuance in service notwithstanding the transfer from private ownership to the Central Government or Government Company. This is a statutory protection for the workmen and is express, explicit and mandatory. " A Full Bench of this Court in the case of Agent, Murlidhar Colliery V/s. Sital Chandra Pathak, 1986 PLJR 1168 at page 1174 observed as follows : "even otherwise it is settled beyond cavil that within the same statute so a special provision would override a generel one. " 63. As seen above the new Act while repealing the old one does not destroy or obliterate the rights and liabilities already accrued under the amended or repealed Act unless there is some express or imnlied provision in this behalf. The proceedings pending at the time of the coming the statute are allowed to continue under the old Act as if the new Act has not come into operation and so the matters of the life time of the repealed or amended Act are allowed to be governed by the old Act and not new Act unless provided expressly or impliedly. For as to what would happen to the matters which have already been decided and are pending in appeal, revision or in the proceeding of the like nature, the supreme Court has observed in the case of Dayawati V/s. Inderjeet, AIR 1966 SC 1423 at page 1426 : "now as a general proposition it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of coke, whose maxima new law ought to be prospective, not retrospective in its operation is oft-quoted, Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective Bat it does not mean that there is an absolute rule of inviolability of substantive rights. Matters of procedure are, however, different and the law affecting procedure is always retrospective Bat it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a taw even after the judgment of the Court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment. See quilter V/s. Mapleson, (1882) 9 QBD 672 and Stovin V/s. Fairbrass, (1919) 88 LJKB 1004, which are instances of new laws being applied in the former the vested rights of the landlord to recover possession and in the latter the vested right of the statutory tenant to remain in possession were taken away after judgment. See also Maxwell interpretation of Statutes (11th Edn.) pp.211 and 213 and K. C. Mukerjee V/s. Mst. Ramratan Kuer, 68 Ind Appl.47 ; AIR 1936 PC 49, where no saving in respect of pending suits was implied when sections 26 (N) and (O) of the Bihar Tenancy (Act as amended by bihar Tenancy Amendment Act 1934) were clearly applicable to all cases without exception. " 64. Thus after the decision of a case under a particular law and during the pendency of the Appeal against, that decision, if a new Act comes into operation, then appeal, revision or the proceeding of the like nature will not be affected by the new law coming into force and it is so with case of the judgment in appeal or revision delivers earlier than the enforcement of the new Act. But it is not an absolute rule it can be violated by making a provision in the new Act making it retrospective so as to be applicable even in appeal or revision pending or decided Though vested rights of a party are not to be taken away, but if the legislature provides so, within its legal and constitutional competence, then it cannot be ignored. In the case of K. C. Mukerjee V/s. Ramratan Kuar, AIR 1936 pc 49 referred to in the case of Dayawati (supra) where a question was whether the Act does not take away from the appellant right which he was proposing to enforce by bringing the appeal to his Majesty in Council, the Privy Council had to dismiss the appeal because the impugned Act was made retrospective. In the present new Act of 1986 there is nothing about any appeal, revision or the like pending in the higher courts, or as afford judgment upheld appeal or revision nor anything has been expressed to make the provisions contained in the Act retrospective nor is there anything by which the rights already vested have been taken away, as such the appeals, revision or any proceeding of the same nature, pending or already decided will not be at all affected by the new act and the same will continue to be governed by the Code of Criminal procedure of 1973. 65. It is to be seen as to how far this new Act has affected the provisions of the Code of Criminal Procedure or has made them inapplicable in the same sphere. Definitely both the provisions are operating in the sphere and area of the maintenance to the divorced wife, children and parents. In Craies on Statute law it has been said : "where a new Act is couched in general affirmative language, and the previous law can well stand with it, and if the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed and therefore the old and the new laws may stand together. . . . . . . . . . . . . . . The two statutes will be considered as forming two distinct codes, and certainly may stand together (at p.368 ). . . . . . . . . . . . . But where affirmative words in a later Act are, as was said in Stradling V/s. Morgan, such as necessarily import a contradiction that is to say, where it is clear that it must have been intended that the earlier and later enactments should be in conflict the two cannot stand together, and the second repeals the first, (at p.369 ). . . . . . . . . . . . . . . . . . . . . . . . . . If a subsequent statute merely creates an exemption or exception from the operation of a previous statute or "modifies its operation by the annexation of a condition," the previous statute is not necessarily repealed. And prior enactments may be rendered inoperative without being actually repealed, (at p.374 ). . . . . . . . . . . . . . . . . . . . . . . . . Even if a subsequent statute taken strictly and grammatically, is contrary to a previous statute, yet if at the same time the intention of the legislature is apparent then the previous statute should not be repealed, it has been in several cases held that the previous statute is to remain unaffested by the subsequent one, (at p.376 ). . . . . . . . . . . It cannot be contended that a subsequent Act will not control the provisions of a prior statute if it were intended to have that operation, but there are several cases in the books to show that where the intention of the legislature was apparent that the subsequent Act should not have such an operation, there, even though the words of the statute, taken strictly and grammatically would repeal a former Act, the courts of law, judging for the benefit of the subject, have held that they ought not to receive such a construction, (at p.376-377 ). " Thus it is not necessary that a subsequent special Act should necessarily repeal the earlie general Act. When the language is not negative but affirmative then the old Act will not stand repealed and when further there does not appear to be any conflict between the two, then both can stand side by side. It is possible that by subsequent Act t" e operation of the old Act in the articular sphere may be restricted, exempted or modified with added conditions in order to meet the situation for which the Special Act has been brought into existence. If such thing is done it does not mean that the earlier and general Act stand repealed or abrogated. Only the operation of that earlier and general Act is restricted and the new Act will govern instead in that sphere as provided. If such thing is done it does not mean that the earlier and general Act stand repealed or abrogated. Only the operation of that earlier and general Act is restricted and the new Act will govern instead in that sphere as provided. Looking to section 125 and allied sections of the Code of Criminal Procedure and Sections 3 and 5 of the new Act it appears that the area of operation of Sections 125 and 127 Cr. P. C. have been restricted. The non-obstante clause is there which means that the provisions of the new Act will prevail and no other provisions contained in the Code of Criminal Procedure will apply. Thus this does not repeal the provisions of the Code of Criminal Procedure. It restricts the provisions of section 125 End allied sections of the Code of Criminal Procedure to the area covered by the provisions of the new Act. Thus the provisions of Sec.125 cr. P. C. are not repealed and they have their area of operation for others except those mentioned in the new Act The Sec.125 Cr. P. C. has not been repealed in view of Sec.5 of the new Act. Both of them stand together harmonious in their respective spheres and areas of operation. 66. The Federal Court in the case of United Provinces V/s. Atiqua Begam, (supra) has said that previously existing law continued in force until they are altered, repealed or amended, that such repeal alteration or amendment may be express language or by implication, that inconsistent or repugnant law is always deemed to be amended or repealed, that negative enactment, unless contrary to each other may, stand together in certain circumstances. In the case of Sri Venkataraman V/s. State of Mysore, AIR 1958 SC 255 the Supreme Court observed : "the result then is that there are two provisions of equal authority, neither of them being subject to the other. The question is how the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be rec nciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. . . . . . " 67. The rule of construction is well settled that when there are in an enactment two provisions which cannot be rec nciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. . . . . . " 67. Learned counsel for the petitioner raised the contention that after the coming into force of the new Act a divorced wife has lost her rights of maintenance which she has been getting under the code. As to this contention section 125 (3) Cr. P. C. provides that if any person who has been ordered to pay maintenance allowance to the wife fails without sufficient cause to comply with the order, the Magistrate may, for the breach of the order of the maintenance, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extent to one month or until payment if sooner made. It has also provided that no such warrant shall be issued for the recovery of any amount unless an application has been made to the court to levy such amount within a period of one year from the date on which it became due. There are other provisions that if the husband offers to maintain the wife and she refuses on the ground which are not justified or if she is liivng in adultry. Then so the wife will not be allowed maintenance. Sec.7 of the Act provides that if an application under Sec.125 or Sec.127 was pending before a magistrate on the commencement of this Act then it shall be disposed of in accordance with the provisions contained in the new Act subject to the provisions of Sec.5 of the Act. So at the time of coming into force of the new Act if her application for recovery of her dues was pending before a Magistrate then it I could be dealt with under the new Act. So at the time of coming into force of the new Act if her application for recovery of her dues was pending before a Magistrate then it I could be dealt with under the new Act. The new Act under Sec.3 provides for the recovery of the amount of the various does enumerated in Sections 3 (a), (b), (c) and (d) for which an application is to be made a Magistrate and if the magistrate is satisfied then he will make an order within one month of the filing of the application for the payment of the dues and if he is not able to dispose of the same then he will have to give reasons for the same and further sub-section (4)of Sec.3 of the Act provides that if any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. 68. Thus sub-ection (3) of Sec.125 Cr. P. C. is virtually in the same language as in sub-section (4) of Sec.3 of the new Act and that the provisions of the Code of Criminal Procedure for the levying of fines have to be resorted to for the realisation of the amount of maintenance or dower. So on coming into force of the new Act if the application under Sec.125 Cr. P. C. or any application under Sec.127 C. P. C. is pending it will be governed by the provisions of the new Act and the dues, if any, to the wife which were unpaid, under the Code of Criminal Procedure, to which she is entitled under the new act, will be paid to her. This will be the position of a divorced woman whose application is pending. This will be the position of a divorced woman whose application is pending. But if a woman who has been paid regularly and her maintenance payment is stopped then she can again come to this Court under the provisions of Sec.3 of the new Act if she is entitled to any relief. 69. A reasonable and fair provision is virtually a lump sum maintenance which is payable in monthly instalments or payment is lump sum under the code of Criminal Procedure and if the court comes to the conclusion that whatever has been paid by the husband and what more she can get keeping in view the circumstances of the case, then the court has got jurisdiction to grant her a reasonable and fair provision and maintenance which was definitely payable within the limitation of Iddat period and that too not only for the Iddat period but beyond that. Thus in this way also a divorced woman is not remedy less. So the contention of the learned counsel giving the interpretation of the Act that the woman has come in a vicious circle and so she has become remediless, is not correct. 70. A Statute is to be given an interpretation which serves the purpose of the legislation and it cannot to made a zero or dead letter, specially in the case of a social legislation providing for protection to downtrodden and stranded divorcee and to save her from miseries and vagarancy, starvation and sufferings. The statute is to be interpreted in such a way as to make the machinery workable and not to defeat or frustrate the objects for which the new enactment has been brought on the statute book. In the case of Kanpur Vanaspati Stores V/s. The commissioner of Income-tax, U. P. , Lucknow (1973) 32 Sales Tax Cases 655 at 659 the Supreme Court held : "ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. " In A. R. Antulay V/s. Ramdas Sriniwas Nayak and another, AIR 1984 SC 718 : 1984 Cr. L. J.647 at page 658 (Cr. " In A. R. Antulay V/s. Ramdas Sriniwas Nayak and another, AIR 1984 SC 718 : 1984 Cr. L. J.647 at page 658 (Cr. L. J.) in para 19 it was observed : "it is a well established canon of construction that the Court should read the section as it is a ad cannot rewrite it to suit its convenience ; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose. . . . . " In re : Ram Awatar Agarval and others, AIR 1982 Calcutta 191 a learned single judge of Calcutta High Court held at page 197 : "it is well known principle of interpretation that an interpretation of a provision (sic) has to be given which leads to harmonious working of the provisions of the Act and which promotes the purposes envisaged in the Act, in other words, the object of the Act and not to frustrate or baffle the same. . . . . . . . . . . . . " 71. Further in interpreting a statute it is also to be seen as to what is the purpose of the legislation, what object has been sought by the legislature through this legislation. So the intention of the legislature, the purpose sought to be achieved and the benefits intended to be given are matters to be kept in mind in giving a meaning to a statutory provision. Maxwell in the interpretation of statute (12th Edn) in Chapter 2 at page 28 observed : "the object of all interpretation is to discover the intention of Parliament. " craies (supra) at page 531 mentions : "this distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules all modern Acts are framed with regard to equitable as well as legal principles. . . . . . . . . . . They are construed now with reference to the true meaning and real intention of the legislature. . . . . . . . . . . They are construed now with reference to the true meaning and real intention of the legislature. " "further at page 532 it mentionsthe more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or un-justifiable lenity on the other, in cases of doubt the courts inclining to mercy. " In V/o Tractoroexport, Moscow V/s. M/s Tarapore Co. and Madras and another, AIR 1971 SC 1 at page 20 it was observed : "a statute should not be construed as a theorem of Euclid but the statute must be construed with some imagination of the purpose which lies behind the statute. The doctrine of literal interpretation is not always the best method for ascertaining the intention of parliament. The better rule of interpretation is that a statute should be so construed as to prevent the mischief and advance the remedy according to the true intent of the makers of the statute. The principle was for example, applied by Lord Halsbury in eastman Photographic Co. V/s. Comptroller General of Patents, 1898 ac 571, where the question was whether the word solio used as a trade mark, was an invented or a descriptive word. In examining this question Lord Halsbury said : among the things which have passed into canons of construction recorded in Heydons case we are to see that was the law before the Act was passed, and what was the mischief or defect for which the law had not provided, what remedy parliament appointed and the reason of the remedy. " In the case of Food Inspector, Palghat Municipality V/s. M/s Seetharam rice and Oil Mills, Pareli and others, 1975 Cr. L. J.479 at page 483 the Full bench of Kerala High Court said : "it is now recognised that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object. (Maxwell on Interpretation of Statutes 10th Edn. , p.262 ). The supreme Court has quoted this rule of construction with approval in M. V. Joshi V/s. M. U. Shimpi, AIR 1961 : (1961) 2 Ker LR 289 : (1961) 2 Cri LJ 696. . . (Maxwell on Interpretation of Statutes 10th Edn. , p.262 ). The supreme Court has quoted this rule of construction with approval in M. V. Joshi V/s. M. U. Shimpi, AIR 1961 : (1961) 2 Ker LR 289 : (1961) 2 Cri LJ 696. . . . . . . . . . . . . . . . . . As far as possible, the courts should adopt that interpretation which promotes and furthers the object and policy of the legislation and suppreses the mischief which the statute is intended to prevent. It is well recognised that the fundamental principle of interpretation of any enactment is that all the provisions therein have to be harmoniously construed so as to achieve the object for which the law is enacted. A full Bench of this court in Kungu Govindan V/s. Parahkat Kuzhileksmi Amma, AIR 1966 Ker 244 following a decision of the Supreme Court in regional P. F. Commissioner V/s. Shibu Metal Works, AIR 1965 SC 1076 has held that if two constructions are possible of particular words occurring in a statute, the court should prefer the construction, which would help the furtherance ot the object of the act. . . . . . . . . . . . . In interpreting and construing a section in an enactment, especially one intended to safeguard and maintain public health, the purpose of law should not be defeated and that interpretation which would result in defeating the purpose has to be avoided. The statement of objects and reasons stated in the Bill might be looked into for the historical background of the amending legislation in ascertaining the reasons to enact the same and to tind out what exactly was the mischief the legislature was trying to aim at when introducting the amendment. " 12. In the case of Prem Chand Jain V/s. R. K. Chhabra, AIR 1984 SC 981 : 1984 Cr. LJ.668 the Supreme Court observed at page 984 (AIR) in para 7 : "we agree with the observation of Lord Somervell to the effect : the mischief against which the statute is directed and, perhaps though to an undefined extent, the surrounding circumstances can be considered. " in ascertaining the true legislative intentioa. (A. G. V/s. H. R. H. Augustus, (1957) 1 All ER 49 (HL ). " in ascertaining the true legislative intentioa. (A. G. V/s. H. R. H. Augustus, (1957) 1 All ER 49 (HL ). Lord Porter also spoke to the same effect while speaking for the Board in the following words : "a right construction of the Act can only be attained if its whole scope and object together with an analysis of its working and the circumstances in which it is enacted are taken in consideration. " Bhagwan Baksh Singh V/s. Secretary of State, AIR 1940 PC 82.)In the case of R S. Nayak V/s. A. R. Antulay, AIR 1984 SC 684 : 1984 Cr LJ 613 at page 623 (Cr LJ), Para 18 the Supreme Court observed : "if the words of the statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self-defeating. The Court is entitled to ascertain the intention of the Legislature to remove the ambiguity by construing the provision of the Statute as a whole keeping in view what was the mischief when the Statute was enacted and to remove which the Legislature enacted the Statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question ot construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the Court to adopt that construction which would advance the object underlying the Act namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it. " 72. In the case of Reserve Bank of India V/s. Peerless Co. , (1987) 1 SCC 424 : air 1987 SC 1023 the Supreme Court observed ; "that interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at. in the context of its enactment, with the glasses of the statute maker provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. " In the case of Utkal Contractors and Joinery Pvt. Ltd. V/s. State of Orissa, AIR 1987 SC 1454 in para 9 the Supreme Court observed : "in considering the rival submissions of the learned counsel and in defining and construing the area and the content of the Act and its provisions, it is necessary to make certain general observations regarding the interpretation of statutes. A statutes is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute. There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath un-necessarily. Just as Parliament is not expected to use unnecessary expressions, parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation ; nor can it be assumed to make pointless legislation. Even as Parliament does not use any word without meaning something, parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation ; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important. For instance, "the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of any Act may well indicate that wide or general words should be given a restrictive meaning". (See Halsbury, 4th Edn. Vol.44 para 874 ). " In the case of Moideenkutty Haji V/s. Kunhikoya and others, AIR 1987 kerala 184 in para 16 the Kerala High Court observed : "there is force in the contention that the different provisions of section 202 could have been better framed so as to avoid the apparent ambiguity in the section. But even then, a purposeful interpretation, keeping in mind the object and purpose behind the new provision, is warranted. It is settled law that when there is ambiguity in the provisions of the statute, the Courts must lean to an interpretation which is consistent with the object which the legislature has intended. If the wording of the section is capable of an interpretation to fit in with the object and purpose of the legislation, without doing violence to the language, the duty of the courts is to give effect to the intention of the legislature. A different interpretation will only tend to defeat the purpose of the provision. If such a purposeful interpretation is made the provisions may appear different than when it is looked at without the object and purpose in mind. " 73. Whatever I have mentioned above, is only to appreciate the arguments and the contentions of the parties and to understand the legal implications for the purposes of this case. Some petitions are said to have been filed in the supreme Court which are pending decision and in the some matters orders are said to have been passed. " 73. Whatever I have mentioned above, is only to appreciate the arguments and the contentions of the parties and to understand the legal implications for the purposes of this case. Some petitions are said to have been filed in the supreme Court which are pending decision and in the some matters orders are said to have been passed. The words of the highest court of this country are the law of the lad binding oa us all. In one Writ Petition (Civil) No.868/86, 1055/86, Danilal Latifi V/s. The Union of India, on 29-7-86 the Supreme Court has passed the following orders : ". . . . . . . . . . If any petition under Sec.125 of the Code of Criminal procedure is pending as of today, then those petitions may not be finally dismissed until further orders. " 74. Thus from all this it is cleat that (i) the provisions of the new Act are not applicable to the present revision application which will be governed by the provisions of Sec.125 and other allied sections of the Code of Criminal Procedure, 1973, (ii) the petitioner has not maintained the opposite-party since october 1981 when she was turned out from her house and since then she has been living with her parents, so she is entitled to maintenance from that period, (iii) the divorce which the petitioner says he had given is not proved to have been given, but in the show cause dated 19-11-82 filed in the petition for maintenance the petitioner has said about Talaq (divorce) and so it will be enforceable from the date of the show cause filed in the court, (iv) O. P. No.1 (Jamila Khatoon) is entitled to maintenance for the period of Iddat. She is also entitled for maintenance even after the period of Iddat till today and also thereafter till the provisions of Sec.127 (3) (b) are complied with, (v) She says that her dower was Rs.2,500 and one gold mahar which payment as alleged by the petitioner has not been found to have been made by the petitioner, so she is em it-led to get the said Amount of Rs.2,500 and one gold mahar from the petitioner. 75. This Court on 2-5-85, as an interim measure, had passed the following order : ". . . . . . . . . . Heard both the parties. 75. This Court on 2-5-85, as an interim measure, had passed the following order : ". . . . . . . . . . Heard both the parties. Having considered the facts and circumstances of this case, I direct the petitioner to pay in a lump sum Rs.125 per month to opposite-party No.1 for both opposite-parties from January, 1985 until final disposal of this application regularly, failing which the stay order passed in this case by order of this Court passed on 19-4-84 shall become inoperative. The petitioner shall deposit the arrears from January, 1985 to April 1985, in two equal instalments in the court below. The first instalment shall be paid by the 30th of June 1985, So far as payment for current month, i. e. May 1985, is concerned, it shall be made by the 13th of June, 1985, and that for the future months i. e June 1985 by 15th of July 1985 and for July 1985 by the 15th of August 1985 and so on so forth. The amount deposited in the court below by the petitioner according to the directions made above, shall be withdrawn by opposite-party No.1. " 76. In view of this order the petitioner had to deposit the amount of rs.125 p. m. In case the amount has been deposited, the O. P. No.1 (Jamila khatoon) will be entitled to withdraw the same if she has not withdrawn. As regards Jamila Khatoon (O. P. No.1) in case the petitioner has complied with the order of this court dated 2-5-85 by depositing Rs.125 per month then the said amount deposited will be taken into consideration. Though the amount of rs.125 fixed by this court as an interim relief does not specify as to how much amount will be for the child and how much for the wife, but it will be in the interest of justice that the amount of Rs.25 out of the amount of Rs.125, if deposited by the petitioner in compliance with the order of this court, may be treated towards the maintenance of the child and the rest amount of Rs.100 will be treated as the maintenance for the wife. Thus if Rs.125 has been deposited then O. P. No.1 (Jamila Khatoon) will get Rs.200 per month from october 1981 till 2-5-85 i. e. for the period of 43 months totalling to Rs.8,600. Thus if Rs.125 has been deposited then O. P. No.1 (Jamila Khatoon) will get Rs.200 per month from october 1981 till 2-5-85 i. e. for the period of 43 months totalling to Rs.8,600. Thereafter she will get Rs.100 per month from May 1985 to July 1988 i. e. for the period of 39 months totalling to Rs 3900 and then, onwards she will get Rs.200 per month Thus she is entitled to get the amount of Rs.12,500, in case there is non-compliance of the order dated 2-5-85 of this court then o. P. No.1 is entitled to get Rs.200 per month from October 1981 till July 1988 i. e. for a period of 82 months totalling to Rs.16,400, so far as Kulsum Ara (O. P. No.2) is concerned, if the order of this Court dated 2-5-85 has been complied with then from October 1981 till 2-5-85 i. e. for the period of 43 months the petitioner will pay total Rs.4300 at the rate of rs.100 per month. The amount of Rs.25 per month (out of Rs.125 if deposited) from 2-5-85 till July 1988 for a period of 39 months amounting to rs.975 thus (Rs, 4300+975) totalling Rs.5275 will be for child Kulsum Ara. In case of non-compliance of the said order dated 2-5-85, the petitioner will have to pay Rs.4300 for 43 months and Rs.3900 for 39 months till July 1988, thus totalling to Rs.8200 to Jamila for Kulsum Ara. Thus petitioner is liable to pay of follows : 76_671_BLJ2_1989.htm 77. Thus the petitioner is liable to pay the said amount of Rs.12,500 or 16,400 as the case may be and also mentioned above to Jamila Khatoon for herself and Rs.5,275 or Rs.8,200 as the case may be for Kulsum Ara to Jamila khatoon. These payments will have to be made by the petitioner within a period of three months from the date of this judgment failling which penal consequences in monetary terms at the rate of 10% per annum on the amounts in question will follow till the realisation of the amount, besides the other consquence of fine and will follow as provided under the law. The petitioner is also directed to go on paying the same unless he absolves himself by making a lump sum payment as provided in Sec.127 (3) of the Code. 78. The petitioner is also directed to go on paying the same unless he absolves himself by making a lump sum payment as provided in Sec.127 (3) of the Code. 78. As found above in this case that the amount of dower has not been paid to the O. P. by the petitioner, she (O. P. No.1) therefore, has right to approach the court of law under the new Act for getting her dower amount from the petitioner and she can also claim for other articles which have been given to her at the time of marriage or thereafter by her parents or any other person from her side or even from the side of her husband which articles have become her own. The court below will consider such application if filed in accordance with the provisions of the new Act. 79. In the result this application has got no force. It is accordingly dismissed with the above observations and directions. The stay order dated 2-5-85 is vacated. Let the lower courts records be sent down there immediately. Application dismissed.