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1997 DIGILAW 1167 (ALL)

MOHD AHMAD v. SEEMA

1997-09-22

J.C.MISHRA

body1997
J. C. MISHRA, J. Learned counsel for the opposite party was not present though the list was revised. Heard learned counsel for the revisionist. 2. This revision is directed against the order dated 8-3-1991 passed by Judicial Magistrate 1st Class Fatehpur in Criminal Case No. 90 of 1990 rejecting the applica tion under Section 127 Cr. P. C. 3. The facts necessary for disposal of this revision are thus: Smt. Seema filed an application under Section 125 Cr. P. C. claiming main tenance allowance for herself and her daughter Km. Farhat. The application was allowed. Dissatisfied with the amount of maintenance she preferred a revision which was decided on 21st March, 1987. The order passed by the Magistrate was modified and she was awarded Rs. 300/- as maintenance allowance for herself and Rs. 200/- as maintenance allowance for her daughter per month. 4. Subsequently, the revisionist Mohd. Ahmad filed an application under Section 127 Cr. P. C. for cancelling the order of maintenance on the ground that he has divorced his wife on 16th May, 1988. Therefore, he was not liable to pay the maintenance with effect from the date of divorce. The learned Magistrate rejected the application. Felt aggrieved he preferred this revision. 5. The revisionist challenged the order on the ground that after coming into force of Muslim Women (Protection of Rights on Divorce) Act, 1986 a husband is not liable to pay maintenance allowance to his divorced wife. Honble N. B. Asthana, J. , who heard the revision referred the question to Division Bench in view of the conflicting decisions of this Court. 6. The reference came for hearing before the Division Bench presided over by Honble B. M. Lai, J. and Honble S. N. Saxena, J. In view of the decision of the Lucknow Bench of this Court in Smt. Hamidan v. Mohd. Rafiq, 1993 (11) LCD 226 the Bench held that the right to receive the maintenance allowance cannot be restricted to the period of Iddat only in the case of a divorced woman. With this answer this matter again came up before this Bench. 7. It is now settled view that an order awarding maintenance allowance under Section 125 Cr. P. C. remains unaffected by enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986. With this answer this matter again came up before this Bench. 7. It is now settled view that an order awarding maintenance allowance under Section 125 Cr. P. C. remains unaffected by enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986. The non-obstantate clauses contained in Sections 3 and 4 of the Act do not supersede the judg ment, decree or order of any Court under Section 125 Cr. P. C. Therefore, the order passed under Section 125 (1) Cr. P. C. prior to the enforcement of 1986 Act remained executable. 8. The learned counsel for the revisionist contended that application under Section 127 Cr. P. C. was not filed with a view to treat the order of main tenance as in executable but to cancel the order from the subsequent date. In view of the provisions of Section 127 (3) (b) (ii) Cr. P. C. he contended that such application is maintainable. It was held in Smt. Shamim Bano v. Mohd. Ismail, 1992 JIC 828 that under sub-section (2) the Court is authorised to vary or cancel its earlier order of maintenance if that is warranted in consequence of any decision of a com petent Civil Court. Under clause (a) of sub-section (3) the Court has to cancel the order of maintenance made earlier if the woman, after being divorced, remarries. In situation contained in sub-section (3) (b) the maintenance granted earlier may be varied or cancelled. In such situation an order of the Court is required. The order of maintenance will not stand, automatically varied or cancelled. 9. In view of the aforesaid decision the application under Section 127 (3) (b) (ii) of the Code of Criminal Pro cedure is maintainable. However, this provision contemplates cancellation of the order of maintenance in the event of the woman having been divorced by her husband, if she has received the whole of the sum, which under any customary or personal law applicable to the parties was payable on such divorce. Therefore, if the husband comes to the Court for claiming cancellation of the order under Section 125 (1) Cr. P. C. he must prove to the satis faction of the Magistrate that whole of the sum payable to the wife under customary or personal law, applicable to the parties, has been paid. Therefore, if the husband comes to the Court for claiming cancellation of the order under Section 125 (1) Cr. P. C. he must prove to the satis faction of the Magistrate that whole of the sum payable to the wife under customary or personal law, applicable to the parties, has been paid. In the case before us there is no allegation that the revisionist has paid dower or any other sum payable to his wife. On the contrary it appears that the wife was compelled to file an application under Section 3 of the Muslim Women (Protec tion of Rights on Divorce) Act, 1986. Therefore, the application under Section 127 (3) (b) (ii) of the Act was not main tainable. It would not be proper to recall the order passed by the Magistrate only for being rejected the application in view of the non-payment of the sum payable by the revisionist. 10. The revisionist may, if so advised, after fulfilling the condition contained in clause (b) of sub-section (3) of Section 127 Cr. P. C. may file application, for cancella tion of the order. On such application being moved, it shall be disposed of in accordance with law. In view of the observations made above the revision is dismissed. Revision dismissed. .