- (1.) THIS revision has been directed against the order dated 4-8-1989, passed by Special Judge / Addl. Sessions Judge, Hamirpur in Criminal Revision No. 129 of 1988, allowing the revision and setting aside the order dated 6-9-88, passed by the Magistrate and directing the Magistrate to ensure that the maintenance allowance of Rs. 130/- per month to the opposite party No. 1 be paid regularly in the light of observation made by this Court in order dated 21-7-86 in Criminal Misc. Case No. 8812 of 1986.
(2.) THE facts giving rise to this revision are that the applicant and respondent No. 1 are husband and wife respectively. The wife respondent No. 1 moved an application under S.125, CrPC against the applicant before the Magistrate for grant of maintenance allowance at the rate of Rs. 250/- per month. The applicant challenged the above order in a revision before the Sessions Judge, the same was dismissed on 24-4-86. Thereafter the applicant moved this Court in a petition under S.482, CrPC (Criminal Misc. Application No. 8812 of 1986). In the above petition it was contended that the opposite party No. 1 was a divorced Mohammadan woman and, therefore, was not entitled to receive maintenance allowance with effect from the date of passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This Court observed that an identical question was raised by the petitioner in execution proceedings pending before the Magistrate who had accepted the contention and has held that divorced Mohammadan woman is not entitled to get maintenance allowance on the basis of those orders from the date of commencement of the Act. That the above order of the Magistrate in execution proceedings will there (sic) considered and determined in the revision filed by the wife and it was not necessary to determine the said question in the above proceedings under S.482, CrPC with the above observation the petition was dismissed, vide order dated 1-2-89. It appears that during pendency of the petition under S.482, CrPC before this Court, the wife opposite party No. 1 moved an application under S.128, CrPC for realisation of maintenance allowance from 1-7-1987 up to the date of application at the rate of Rs. 250/- per month. In the said case, the applicant raised objection that he had divorced the opposite party No. 1 in the year 1983 and therefore, she being a divorced wife was not entitled to maintenance allowance after enforcement of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called the Act of 1986). The learned Magistrate on hearing counsel for the parties held that it has been proved that the applicant divorced the opposite party No. 1 on 20-1-1984 and, therefore, her right to recover the maintenance allowance were effective only up to 19-5-1986, before the date of enforcement of the Act of 1986. Consequently upon the enforcement of the Act of 1986, the opposite party 1 was not entitled to any maintenance allowance thereafter. With this observation he rejected the application.
(3.) THE opposite party No. 1 filed Criminal Revision No. 129 of 1988 against the above order of the Magistrate and the learned Sessions Judge on hearing learned Counsel for the parties and relying on Single Bench decision of this Court in Mohd. Azizur Rehman Khan v. Smt. Ibrat Ara reported in 1989 Lucknow Criminal Reports 7, held that the rights which had already been acquired by the wife and that had consequent to her under provisions of CrPC would not come to an end just by passing of the Act of 1986 and the right which had accrued and become vested continued to be capable of being enforced notwithstanding that the repeal of the statute under which that right accrued unless repealing statute has taken away such right expressly or impliedly. With this observation he allowed the revision of opposite party No. 2, set aside the order of the Magistrate dated 6-9-88 and directed the Magistrate to ensure that maintenance allowance of Rs. 130/- per month order passed by this Court on 21-7-86 in Criminal Misc. Application No. 8812 of 1986.;