- (1.) An order passed by the learned Sub-Divisional Judicial Magistrate, Basirhat in case No. M-7 of 1992 on 27.4.94 falls for consideration before this Court. The petitioner filed an application supported by an affidavit under Sections 7 and 8 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the said Act,) that she desires to be governed by the provisions of Section 125 of the Code of Criminal Procedure (for short the said Code) and the proceeding may be converted accordingly. The opposite party maintained that as he does not wish to be governed by the provisions of Section 125 of the said Code. The learned Magistrate refused the prayer of the petitioner and directed that the proceeding will continue in accordance with the provisions of the said Act.
(2.) The learned lawyer appearing for the petitioner submits by drawing the attention of this Court to Section 5 of the said Code by submitting that the option to be governed either by Section 125 of the said Code or under the provisions of the said Act, can be exercised either by the husband or by the wife and the learned Magistrate was not correct in dismissing her prayer. Referring to the provisions of Section 5 of the said Act, he submitted that in view of the language of the said Section which speaks "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)."
(3.) It is either the divorced woman or her former husband who can exercise this option. He laid emphasis on the words either jointly or separately. The learned lawyer for the petitioner by referring to the said Section has prayed for setting aside the impugned order and for direction upon the learned Magistrate to proceed under the provisions of the said Code.;