M.B. SHAH

(1) In these petitions the questions which arise for determination are:

(1)Whether by the enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986 hereinafter referred to as the Muslim Women Act the orders passed by the Judicial Magistrate First Class under Sec. 125 of the Criminal ProceCode ordering the husband to pay maintenance to the wife are nullified

(2) Whether the Muslim Women Act takes away the rights which are conferred upon the divorced women under the Personal Law as interpreted by the Supreme Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 [LQ/SC/1985/147]

(3) Whether the Muslim Women Act provides that a divorced woman is entitled to have the maintenance only during the that period i.e. only for the that period

As these questions are of importance a number of learned Advocates intervened in the matter and they ably rendered assistance.

(2) For deciding the aforesaid questions it would be necessary to refer to the preamble of the Act which reads as under: An Act to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto. From this problems one thing is apparent that the act is enacted to protect the rights of Muslim women who have been divorced by or have obtained divorce from their husbands. This is as clear as anything could be. In simplest language the Parliament has stated that the Act is for protecting the rights of Muslim Women. It does not provide that it is enacted for taking away some rights which a Muslim woman was having either under the Personal Law or under the general law i.e. Secs. 125 to 128 of the Criminal Procedure Code. The aforesaid preamble further provides that it is also enacted for making other provisions for matters connected therewith or incidental thereto.

(3) Keeping this in mind we have to consider the provisions of Sec. 3. As this section requires to be interpreted. it would be necessary to refer to it in its entirety. Section 3 is as under:

"3 (1) Notwithstanding anything contained in any other law for the time being in force a divorced woman shall be entitled to

(a)A reasonable and fair provision and maintenance to be made and paid to her within the that period by her former husband;

(b) Where she herself maintains the children born to her 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 the 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 friend.

(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-sec. (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-sec. (2) by a divorced woman the Magistrate may if be is satisfied that

(a) Her husband having sufficient means has failed or neglected to make or pay her within the that period a reasonable and fair provision and maintenance for her and the children; or

(b) The amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clauses (d) of sub-sec. (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-sec. (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-sec. (3) fails without sufficient cause to comply with the order the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying them under the Code of Criminal procedure 1973 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. (Emphasis added)

Section 3(1) begins with non-obstante clause notwithstanding anything contained in any other law for the time being in force and provides that a divorced woman shall be entitled to have from her former husband:

(i) a reasonable and fair provision;

(ii) a reasonable and fair maintenance;

which is to be made and paid to her within the that period. Clause (b) of sub-sec. (1) provides for a reasonable and fair provision and maintenance to be made and paid for a period of two years from the respective dates of the birth of such children. This clause (b) specifies the period for which she is entitled to get maintenance for her children. The period is limited only to two years from the respective dates of birth of such children. So the specific period is provided for which she is entitled to get provision and maintenance for her children. In addition to the above she is entitled to get mahr or dower amount under clause (b) and 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 under clause (d).

(4) The crucial question which would require determination is whether under Sec. 3(1)(a) a divorced woman is entitled to get a reasonable and fair provision and maintenance only during the that period or beyond it No specified period for which she is entitled to get reasonable and fair provision and maintenance is fixed under the Act nor Sec. 3(1)(a) provides that for a particular period she is entitled to get the said amount. The learned Advocates who are appearing on behalf of the former husband submitted that a divorced woman is entitled to get provision and maintenance from her former husband within the that period only and that word within should be read as during or for. In my view this submission cannot be accepted for the reasons which I would narrate hereafter after referring to other provisions of the Act.

(5) Under sub-sec. (2) of Sec. 3 a divorced woman is entitled to file an application before a Magistrate if the former husband has not made and paid to her a reasonable and fair provision and maintenance mahr or dower due or has not delivered the properties given to her as stated in sub-sec. (1)(d) sub-sec. (3) provides how the Magistrate is required to proceed with the said application. The Magistrate has to be satisfied that (i) her husband was having sufficient means and (ii) has failed or neglected to make or pay her within the that period a reasonable and fair provision and maintenance for her and the children. After taking into consideration the aforesaid facts he can pass an order directing the 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 (a) the needs of the divorced woman (b) the standard of life enjoyed by her during her marriage and (c) the means of her former husband. If the mahr or dower amount or the properties referred to in clause (d) of sub-sec. (1) have not been delivered to her then under sub-sec. (3)(b) he is required to direct the former husband to make payment of such mahr or dower or deliver all such properties as referred to in Sec. 3(1)(d). From this sub-sec. it is clear that objective criteria are laid down by the Legislature for determining reasonable and fair provision and maintenance to be paid to the divorced woman i.e. the needs of the divorced woman the standard of life enjoyed by her during her marriage and the means of her former husband. After taking into consideration all these facts he is required to determine the amount and pass appropriate order. This sub-section nowhere provides that the determination of reasonable and fair provision and maintenance is only for the that period.

(6) The other important section which requires consideration is Sec. 4 which is as under:

"4 (1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the that period he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine 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 such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order;

Provided that where such divorced woman has children the Magistrate shall order only such children to pay maintenance to her and in the event of any such children being unable to pay such maintenance the Magistrate shall order the parents of such divorced woman to pay maintenance to her;

Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same the Magistrate may on proof of such inability being furnished to him. order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-sec. (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-sec. (1) the Magistrate may by order direct the State Wakf Board established under Sec. 9 of the Wakf Act 1954 or under any other law for the time being in force in a State functioning in the area in which the woman resides to pay such maintenance as determined by him under sub-sec. (1) or as the case may be to pay the shares of such of the relatives who are unable to pay at such periods as he may specify in his order."

This section also begins with non-obstante clause i.e. notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force. Therefore it clearly means that whatever might have been provided under Sec. 3 or in any other law for the time being in force the divorced woman is entitled to file an application for grant of maintenance if she has not re-married after the Iddat period and is not able to maintain herself after the Iddat period meaning thereby that even if she has received reasonable and fair provision and maintenance from her former husband if she has not re-married after the Iddat period and is not able to maintain herself after the Iddat Period she can file an application for grant of maintenance and the Magistrate can pass an order directing such of her relatives who are entitled to inherit her property on her death according to Muslim Law to pay maintenance at such periods as he may specify in his order. Again it should be noted that Sec. 4(1) provides for payment of reasonable and fair maintenance only and not for reasonable and fair provision and maintenance sub-sec. (2) of Sec. 4 provides that where the divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-sec. (1) or such relatives or any of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives the Magistrate can direct the State Wakf Board established under Sec. 9 of the Wakf Act 1954 or under any other law for the time being in force in a State to pay such maintenance as determined by him under sub-sec. (1) or as the case may be to pay the shares of such of the relatives who are unable to pay at such periods as he may specify in his order.

(7) From Secs. 3 and 4 broadly speaking it can be said that the following rights are conferred upon a divorced woman:

(1) She is entitled to have a reasonable and fair provision and maintenance from her husband. That is to be made and paid to her within the Iddat period. The determination of reasonable and fair provision and maintenance depends upon the needs of the divorced woman the standard of life enjoyed by her during her marriage and the means of her former husband. Apart from this she is entitled to have mahr or dower and return of her properties.

(2) If she has not re-married after the Iddat period and is not able to maintain herself then she is entitled to get maintenance (maintenance only) from her relatives who are entitled to inherit her property on her death at such period as directed by the Magistrate; and

(3) If her relatives are not in a position to pay such maintenance she is entitled to get it from the Wakf Board at such periods as specified by the Magistrate.

(8) The next question which would require determination is whether this reasonable and fair provision and maintenance is limited only up to Iddat period or whether it is to be made and paid to her after visualizing or contemplating her future needs The learned Advocates who are appearing on behalf of the former husbands vehemently submitted that the period is limited and it is only for the Iddat period. As against this the learned Advocates appearing on behalf of the divorced woman submitted that the Parliament has provided for making reasonable and fair provision and payment of reasonable and fair maintenance to the divorced woman after visualizing and contemplating her future needs. That amount is to be paid by her former husband or provision is required to be made by her former husband within the Iddat period. Heavy reliance was placed by the learned Advocates for both the sides on the decision of the Supreme Court in the case of Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945 [LQ/SC/1985/147] . Learned Advocates appearing on behalf of the former husbands submitted that in view of the decision of the Supreme Court In the aforesaid case the Parliament has enacted the Muslim Women Act to take: away the rights of a Muslim divorced woman as decided by the Supreme Court as well as her right to get maintenance under Sec. 125. As against this Mr. Pandya the learned Government Pleader and Public Prosecutor and other learned Advocates submitted that nowhere the Act provides that the personal rights conferred upon a Muslim divorced woman or the rights conferred upon her under Secs. 125 to 127 are taken away or are in any way adversely affected. On the contrary they submitted that in conformity with the view expressed by the Supreme Court in the aforesaid case the Parliament has codified the rights of a Muslim divorced woman.

(9) Taking into consideration the objects and reasons for enacting the Muslim Women Act as well the preamble and the plain language of Sec. 3 it cannot be said that Muslim Women Act in any way adversely affects the personal rights of a Muslim divorced woman as laid down by the Supreme Court in Shall Banos case. In Shah Banos case the Supreme Court in paragraph 11 has stated as under:

" We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because in 50 far as it lies in our power we wanted to set at rest once for all the question whether Sec. 125 would prevail over the personal law of the parties in cases where they are in conflict. "

(Emphasis added) Thereafter in paragraph 13 the Court referred to the contention of the husband that the liability of a husband to maintain a divorced wife is limited to the period of Iddat. The Court further referred to the quotations from Mullas Mahomedan Law and other authors and in paragraph 14 held that the statements ill the aforesaid Text Books were identical (sic intended) to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife who is unable to maintain herself. The Court held that the statements extracted from the above Text Book which lay down that the husband has no obligation to maintain his wife at her Iddat period are not only incorrect but unjust and they would not apply to cases in which a divorced woman is unable to maintain herself The Court held:

"We are of the opinion that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife."

" The Court rejected the contention that under the Muslim Personal Law the former husband is liable to provide maintenance to his divorced wife only for Iddat period and held as under: The argument of the appellant that according to the Muslim Personal Law his liability to provide for the maintenance of his divorced wife is limited to the period of iddat despite the fact that she is unable to maintain herself has therefore to be rejected the true position is that if the divorced wife is able to maintain herself the husbands liability to provide maintenance for her cases with the expiration of the period of iddat. If she is unable to maintain herself she is entitled to take recourse to Sec. 125 of the Code. The out come of this discussion is that there is no conflict between the provisions of Sec 125 and those of the Muslim Personal Law on the question of the Muslim husbands obligation to provide maintenance for a divorced wife who is unable to maintain herself. " (Emphasis added)

The Court thereafter referred to the Holy Quran and Verses (Aoyats) 241 and 242 which are reproduced as under: There was some controversy with regard to the English version of the word Mata. Some state it to be maintenance and some state it to be provision. It should be noted that Sec. 3(1)(a) provides for reasonable and fair provision and maintenance. May be that the Parliament wanted to be doubly sure about the exact meaning of the word Mata and therefore it provided for reasonable and fair provision and maintenance. The Court further referred to an English version of the aforesaid two Aiyats by different authorities. One is that of Muhamud Zafrullah Khans The Quran (page 38) which reads as under:

" For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous Thus does Allah make His commandments clear to you that you may understand."

For our purposes it is not necessary to refer to other quotations. The Court thereafter held that these Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. In iew fo thisv interpretation given by the Supreme Court it is apparent that the Parliament has made provision in Sec. 3(1)(a) which states that a divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband. The learned Advocates appearing on behalf of the husbands submitted that this enunciation of law by the Supreme Court is not in accordance with the Personal Law as interpreted on different occasions by different authorities. They also wanted to rely upon some decisions of the various Courts. In my vies it is not open to me to take any contrary view in view of the law laid down by the Supreme Court. Further it should be noted that the decision in the case of Shah Bano is of the Bench consisting of 5 Honble Judges.

(10) The Court further negatived the contention of the husband that once the mahr or dower amount is paid that would take care of the requirements of divorced woman. The Court alter considering the Privy Counsel decisions and the Bill which led to the amendment of the Code of Criminal Procedure held that the decisions of the Supreme Court in the cases of Bai Tahira v. All Hussain Fidaalli Chothia AIR 1979 SC 362 [LQ/SC/1978/293] and Fazlunbi v. K. Khader Vali AIR 1980 SC 1730 [LQ/SC/1980/247] are correct and held that there is no escape from the conclusion that a divorced Muslim wife is entitled to fair and reasonable maintenance under Sec. 125 and that mahr is not a sum which under the Muslim Personal Law is payable on divorce.

(11) In paragraph 32 the Court held that it was a matter of regret that Art. 44 of the Constitution has remained a dead letter as there was no evidence of any official activity for framing a common Civil Code for the country. It further observed as under:

"It is the State which is charged with the duty of securing a uniform Civil Code for the citizens of the country and unquestionably it has legislature competence to do so. A Counsel in the case whispered somewhat audibly that legislative competence is one thing the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons to different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning." (Emphasis added)

(12) Therefore it seems that because of the aforesaid observation of the Supreme Court the Parliament has made the beginning and has codified the rights of Muslim divorced wife. This is borne out by the objects and reasons of enacting the Muslim Women Act which are as under:

"The Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum and Others (AIR 1985 SC 945 [LQ/SC/1985/147] ) has held that although the Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat it does not contemplate or countenance the situation envisaged by Sec. 125 of the Code of Criminal Procedure 1973 The Court held that it would be incorrect and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain herself. The Court therefore. came to the conclusion that if the divorced wife is able to maintain herself the husbands liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat she is entitled to have recourse to Sec. 125 of the Code of Criminal Procedure.

2 This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has therefore been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests." (Emphasis added)

Even the preamble of the Muslim Women Act recites to the same effect.

(13) The Parliament also codified that in addition to reasonable and fair provision and maintenance the wife is entitled to get mahr or dower amount. That means that the Parliament also approved the observation of the Supreme Court that mahr amount is not the amount which is to be paid to a divorced woman at the time of divorce or for taking divorce. The Supreme Court has held that the said amount is payable as a make of respect for the wife and is to be paid to her at the time of marriage or it can be paid in two parts one of which is called prompt which is payable on demand and the other Is called deferred which is payable on dissolution of the marriage by death or by divorce. The Parliament therefore provided under sec. 3(1)(c) that a divorced woman Is entitled to have an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law. This means without any doubt that the Parliament also considered that mahr or dower is not the amount which is payable for taking divorce or for maintenance of the divorce woman. Hence it can be said that whatever is laid down by the Supreme Court in Shah Banos case is codified by the Parliament by enacting the Muslim Women ACt. The Parliament has also taken care to see that a divorced woman gets back all properties given to her before or at the time of marriage or after the marriage by her relatives or friends and that is provided in Sec. 3(1)(d).

(14) Further if we consider the phrase used by the Parliament in Sec. 3(1)(a) i.e. reasonable and fair provision and maintenance to be made and to be paid to her it seems that the Parliament intended to see that the divorced woman gets sufficient means of livelihood after the divorce and that she does not become destitute or is not thrown on the streets without a roof over her head and without any means of sustaining herself and her children. The word provision Itself indicates that something is provided in advance for meeting some needs. In the Websters New Twentieth Century Dictionary Second Edition the following meanings are given to the word provision:

1 a. providing preparing or supply of something.

2 Something provided prepared or supplied for the future.

3 (pl.) a stock of food and other supplies assembled for future needs.

4 Preparatory arrangements or measures taken in advance for meeting some future needs.

This means that at the time of giving divorce the Muslim husband is required to visualize or contemplate the extent of the future needs and make preparatory arrangement in advance for meeting the same and therefore the Parliament has provided that reasonable and fair provision is to be made and paid to her May he that the provision can be made that every month a particular amount be paid to the wife may be that residential accommodation for her can be provided may be that some property be reserved for her so that she can purchase articles for livelihood. Reasonable and fair provision may include provision for her residence provision for her food provision for her clothes and other articles. The husband may visualize and provide for residential accommodation till her re-marriage. That means. a provision for residential accommodation is made Apart from the residential accommodation for her clothes. food and also for other articles some fixed amount may be paid or he may agree to paay it by instalments. That would also be a provision Therefore the provision itself contemplates future needs of divorced woman. If the husband is rich enough. he may provide separate residential accommodation. In other cases he may provide rented accommodation and that can be said to be a provision for residential accommodation . Therefore there is no substance in the contention of the learned Advocates appearing for the husbands that under Sec. 3(1)(a) divorced women is entitled to provision and maintenance only for Iddat period. The Parliament has further emphasized that apart from reasonable and fair provision reasonable and fair maintenance is also required to be made and paid to her. It has further prescribed the objective criteria for determining what would be reasonable and fair provision and maintenance for her in sub-sec (3) which provides the Magistrate shall determine reasonable and fair provision and maintenance having regard to the needs of the divorced woman the standard of life enjoyed by her during her marriage and means of her former husband. meaning thereby that if the former husband is a millionaire be is hound to make provision in accordance with his means. Hence it can be said that the limitation in Sec. 125 of the Criminal Procedure Code that maintenance up to Rs. 500.00 is to be paid is not there in this provision. Therefore something more is given to the Muslim divorced women and her rights are fully protected as stated in the objects and reasons and preamble of the Muslim Women Act.

(15) The learned Advocates aPPearing on behalf of the husband submitted that the word within used in Sec. 3(1)(a) should be read as for or during. In my view this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before not beyond not later than. In the Concise Oxford Dictionary the word within is given the meaning as under:

"3 Not beyond not too far for not transgressing so as not to pass or exceed subject to

4 Not too far for near enough to effect or be affected by not farther off than

5 In a time no longer than before exPiration or since beginning of."

In the Websters New Twentieth Century Dictionary Second Edition also the word within is given the meaning as under

" 2 In the limits of compass of not beyond in distance time degree etc. as within my sight within ones income.

3 Inside the limits of not exceeding not overstepping etc.: as within the law "

The word within came up for construction before the Division Bench of the Bombay High Court in the case of Commissioner of Income Tax v. Ekbal and Co. AIR 1945 Bombay 316. In that case the Court held that whereas within the stated period must mean what it says something less than the moment of expiration. The Court further held that within 30 days is within two points of time one at which the period begins and the other at which it expires. Therefore the word within which is used by the Parliament in the Muslim Women Act would mean that on or before the expiration of Iddat period. the husband is bound to make and pay a reasonable and fair Provision and maintenance to the wife If he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in sub-sec. (2) of Sec. 3 but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the Iddat period or that it is to be paid only during the Iddat period and not beyond it.

(16) The aforesaid conclusion is further fortified by the provisions of Sec. 5 of the Muslim Women Act which reads as under:

" 5 If on the date of the first bearing of the application under sub-sec. (2) of See. 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 Secs. 125 to 128 of the Code of Criminal Procedure. 1973 (2 of 1974). and 61 such affidavit or declaration in the Court hearing the application the Magistrate shall dispose of such application accordingly

Explanation- For the purPoses of this section date of the first hearing of the application means the date fixed in the summons for attendance of the respondent to the Application"

It gives option to the parties either to be governed by the procedure under Secs. 125 to 128 of the Criminal Procedure Code or under the provisions of the Act This would prima facie mean that there is no inconsistency or repugnancy between the general provisions of Secs. 125 to 128 and the Muslim Women Act. If there was inconsistency the Parliament would not have given any option to the parties. Further if Sec. 3(1)(a) is interpreted to mean that the former husband is bound to provide maintenance only for that period then in no set of circumstances it can be expected that a former husband would pay future maintenance because it is difficult to imagine that the person who has given divorce to his wife would be so chivalrous as to agree to pay future maintenance. The result would be that in almost all cases divorced woman would like to be governed by the provisions of Sec. 125 and the former husband would refuse to be governed by the provisions of Sec. 125. Can it be imagined that the Parliament would pass an Act which gives absolute discretion to the former husband and leave a divorced woman at his mercy and sweet will Normally divorces are given because there are disputes between the parties. In that set of circumstances it is difficult to imagine that the husband would agree to pay future maintenance if there is no specific provision in the Muslim Women Act. If that interpretation is accepted then Sec. 5 would be redundant or otiose. Normally the provisions of the Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency. Therefore also it would be just and proper to hold that Sec. 3(1)(a) provides that the former husband is bound to make reasonable and fair provision and maintenance after taking into consideration the future needs of the divorced woman.

(17) Mr. Pandya the learned Government Pleader and Public Prosecutor rightly pointed out that the whole purpose and object of the Act is to specify or codify the law and not to take away the rights which are crystallized by the Supreme Court in the case of Shah Bano. If the Parliament really intended to nullify the decision of the Supreme Court it would have specifically stated so in the objects and reasons or would have provided it specifically in the Muslim Women Act itself.

(18) Further even applying the well-known principles of construction of statutes also the result would be the same. The intention of the Legislature has to be gathered by reading the statute as a whole. That is a rule which is now firmly established for the construction of the statute. Therefore if we read different phrases used in Secs. 3(1)(a) 3 3 and Sec. 4 as well as Sec. 5 of the Act together it would be clear that the Parliament wanted that the divorced woman is fully protected if she does not re-marry and she gets adequate provision and maintenance from her former husband and or maintenance from her relatives or Wakf Board in case of necessity. Section 3(1)(a) provides for reasonable and fair provision and maintenance to be made and paid by her former husband within the Iddat period. Section 3(1)(b) provides reasonable and fair maintenance for the children only for a period of 2 years. Section 3(3) lays do in the objective criteria for deciding the future needs of the divorced woman and directs the Magistrate to determine reasonable and fair provision and maintenance depending upon the means of her former husband. Further in case of the inability of the wife to maintain herself even from the said provision and maintenance made and paid to her by her former husband she can get it from her relatives or from the Wakf Board. Section S of the Act gives option to the parties to be governed by the provisions of Secs. 125 to 128. From this it is abundantly clear that the phrase used in Sec. 3(1)(a) deals with future needs of the divorced woman and on that basis reasonable and fair provision and maintenance is required to be made and paid to her by her former husband. Further the words and phrases used by the Parliament are to be construed in the ordinary and natural sense. It would be worthwhile to refer to the Interpretation of Statutes by Maxwell Twelfth Edition Chapter 2 which reads as under:

" The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one and otherwise in their ordinary meaning and the second is that the phrases and sentences are to be construed according to the rules of grammar The length and detail of modern legislation wrote Lord Evershed M R. has undoubtedly reinforced the claim of literal construction as the only safe rule.. If there is nothing to modify alter or qualify the language which the statute contains it must be construed In the ordinary and natural meaning of the words and sentences. The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without in the first instance reference to cases."

The rule of construction is to intend the Legislature to have meant what they have actually expressed. The object of all interpretation Is to discover the intention of Parliament but the intention of Parliament must be deduced from the language used for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law." (Emphasis added)

(19) Mr. Pandya further referred to Statutory Interpretation by Francis Bennion and referred to Paragraph 137 (Page 325) which reads as under: Prima facie the meaning of an enactment which was intended by the legislator (in other words its legal meaning) is taken to be that which corresponds to the literal meaning (as defined in Sec. 91 of this code).9 and Paragraph 140 which reads as under:

"It is presumed to be the legislators intention that the Court when considering in relation to the facts of the Instant case which of the opposing constructions of the enactment corresponds to its legal meaning. should assess the likely consequences of adopting each construction both to the parties in the case and (where similar facts arise in future cases) for the law generally if on balance the consequences of a particular construction are more likely to be adverse than beneficent this is a factor telling against that construction." (emphasis added)

(20) As against this the learned Advocates appearing on behalf of the husbands submitted that before interpreting the section the Court has to consider the history of the enactment and the reason why the Act was brought in. According to their submission to nullify the interpretation given by the Supreme Court in Shah Banos ease the Parliament has enacted the Muslim Women Act. In my view even if we take into consideration the legislative history for enacting the Muslim Women Act it is clear that the Act is to codify and protect the rights of Muslim divorced wife. It was rightly submitted by the learned Advocates Mr. Pandya and Mr. D. K. Shah that the Act nowhere provides or states that it is enacted to nullify the decision of the Supreme Court in Shah Banos case. It nowhere states that the rights which are given to a Muslim divorced wife under the Personal Law are in any way adversely affected by the present enactment. As discussed above the objects and reasons for enactment specifically state that the Muslim Women Act is enacted to specify the rights which the Muslim divorced woman is entitled to have at the time of divorce and to protect her interest. This is also further clear from the preamble of the Act. Further the plain grammatical meaning of Sec. 3(1)(a) would be that the divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband. That provision is to he made and maintenance is to be paid to her within Iddat period So the time limit is prescribed during which the husband is bound to carry out his obligation towards his divorced wife. As stated above the word provision in the context of the Act would mean the action of providing something before hand or arranging in advance to meet the needs of the divorced wife. May be that provision can be made for her residence or her maintenance or for her other Deeds such as clothes food and such other things depending upon the means of the husband. If the husband is millionaire the amount is to be determined accordingly. The Parliament seems to have intentionally used the word provision because at the time of giving divorce the husband may visualise that the wife is likely to re-marry. If she is likely to re-marry then provision can be made on for a limited period. It may depend in some cases on the age of the woman children her appearance and health. If she is a middle-aged woman having children she may not have any chances of re-marriage. If the intention of the Parliament was to take away some rights which were crystallized by the decision of the Supreme Court in Shah Banos case then the Parliament would not have used the phrase which it has used in Sec. 3(1)(a) i.e. reasonable and fair provision and maintenance to be made and paid. The draftsmen would have conveniently stated that a divorced woman is entitled to have maintenance during the Iddat period. In Sec. 4 it has been provided that a divorced woman is entitled to net maintenance (only) at such periods as the Magistrate may specify. In Sec. 3(1)(a) no periods are specified.

(21) Mr. Oza learned Advocate appearing on behalf of the wife rightly relied upon the decision of the Supreme Court in the case of Municipal Council Palai v. T. J. Joseph AIR 1963 SC 1561 [LQ/SC/1963/42] wherein the Court has held that it is equally well-settled that there is a presumption against an implied repeal because there is assumption that the Legislature effects laws with complete knowledge of existing laws obtaining on the same subject and the failure to add a repealing clause indicates that the intention was not to repeal existing law. It would be worthwhile to reproduce the relevant discussion in paragraph (9) of the said decision which reads as under:

" It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. of course this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crawford on Statutory Construction p. 63t para 31):

There must be what is often called such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together. In other words they must be absolutely repugnant or irreconciable. Otherwise there can be no implied repeal for the intention of the legislature to repeal the old enactment is utterly lacking. If we consider Secs. 1 to 7 nowhere it is provided that the rights which are conferred upon a Muslim divorced wife under Personal Law are abrogated away restricted or repealed. It is presumed that the Muslim Women Act is enacted with deliberation and full knowledge of existing law on the subject. Therefore it would be reasonable to conclude that the Parliament in passing the Muslim Women Act did not intend to interfere with or abrogate any rights of the divorced wife. Further the implied repeal will take place in the event of clear inconsistency or repugnancy. As such there is no inconsistency or repugnancy in the Muslim Women Act and the law laid down by the Supreme Court.

(22) It is also a well-recognised rule of interpretation of Statutes that as far as possible statute should be interpreted so as to respect the vested rights of parties. While dealing with Secs. 21 and 22 of the Hindu Adoptions and Maintenance Act the Supreme Court in the case of Gopala Rao v. Sitharam Amma AIR 1965 SC 1970 held that prior to the enactment of Hindu Adoptions and Maintenance Act a concubine was entitled to claim maintenance from the estate of the paramour and if the rights of maintenance were acquired by her or illegitimate sons of the deceased those rights are not affected by the provisions of Secs. 21 and 22 of the Act. While dealing with this aspect the Court has held as under:

" Now before the Act came into force rights of maintenance out of the estate of a Hindu dying before the commencement of the Act were acquired and the corresponding liability to pay the maintenance was incurred under the Hindu Law in force at the time of his death it is a well-recognised rule that a statute should be Interpreted if possible so as to respect vested rights and such a construction should never be adopted if the words are open to another construction. See Craies on State Law 6 Edn. (1963) p. 397. We think that Secs. 21 and 72 read with Sec. 4 do not destroys or affect any right of maintenance out of the estate of a deceased Hindu vested on his death before the commencement of the Act under the Hindu Law in force at the time of his death. (Emphasis added)

(23) In the present case the Muslim Women Act is for codification of the law dealing with Muslim divorced womans right of maintenance and therefore unless the existing law is altered by express words the Court should respect the vested rights. It further should not hold that the Act is gOing beyond codification.

(24) The learned Advocate Mr. J. G. Shah submitted that the Muslim Women Act is for protecting the weaker section of one community and is a beneficial legislation hence ever if two interpretations are possible the Courts should liberally interpret the Section in favour of the weaker section without doing any violence to the language used by the Parliament. For this purpose he relied upon the decision of the Supreme Court in the case of Workmen of I. T. and R. Co. v. The Management AIR 1973 SC 1227 [LQ/SC/1972/133] . In that case the Supreme Court dealt with the provisions of Sec. 11A of the Industrial Disputes Act 1947 In that case the SC held that it is well settled that in construing the provision of a welfare legislation Courts should adopt what is described as a beneficent rule of construction. If two constructions are reasonably possible to be placed on the Section it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees has to be preferred. The Court further considered the aspect whether a long chain of the decisions of the Supreme Court laying down various principles in relation to adjudication of disputes by Industrial Courts arising out of orders of discharge or dismissal were altered or not by a clear expression in the Section. The relevant discussion is in Paragraph 31 of the said judgment and it is as under:

"We cannot accept the extreme contentions advanced on behalf of the workmen and the employers we are aware that the Act is a beneficial piece of legislation enacted in the interest of employees. It is well settled that in construing the provision of a welfare legislation Courts should adopt what is described as a beneficent rule of construction. If the constructions are reasonably possible to be placed on the section it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the service conditions of an employee demands an interpretation liberal enough to achieve the legislature purpose. But we should not also lose sight of another canon of interpretation that a statute or for the matter of that even a particular section has to be interpreted according to its plain words and without doing violence to the language used by the legislature. Another aspect to be borne in mind will be that there has been a long chain of decisions of this Court referred to exhaustively earlier laying down various principles in relation to adjudication of disputes by industrial Courts arising out of orders of discharge or dismissal. Therefore it will have to be found from the words of the section whether it has altered the entire law as laid down by the decisions and if so whether there is a clear expression of that intention in the language of the section. "(Emphasis added)

(25) Therefore in my view taking into consideration the plain language used by the Parliament in Sec. 3(1)(a) that a divorced woman is entitled to have a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband it would clearly mean that her husband is bound to make reasonable and fair provision for her and also is bound to provide for maintenance and that this provision and maintenance should be made and paid to her within Iddat period but it cannot be said that the Parliament wanted to provide maintenance only for Iddat period. In any set of circumstances even if other interpretation is possible as discussed above this law is to protect the rights of the Muslim divorced woman and not to take away her personal rights under the Muslim Law as interpreted by the Supreme Court in Shah Banos case. While construing a welfare legislation a liberal construction should be placed on the provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or satisfied. Benignant provisions enacted by the Legislature having regard to the modern age have to be interpreted in meaningful manner which serves rather than defeats the purpose of the legislation. Therefore also the interpretation which is beneficial to the divorced woman should be accepted.

(26) Further wherever the Parliament intended to provide maintenance and provision for a limited period it has done go specifically. This is apparent if we refer to Sec. 3(1)(b). Clause (b) provides provision and maintenance only for a period of two years from the respective dates of birth of children. It cannot be assumed that the parliament has used different phraseology in two clauses of the same Section unintentionally. On the contrary it can be said that where different phraseology is used in different clauses of the Section it can be presumed that the Parliament used it in order to confer different benefits. Reference may be made to Law of Maxwell on The interpretation of Statutes Twelfth Edition Page 282:

" From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts there follows the further presumption that a change of wording denotes a change in meaning. Where the Legislature said Lord Tenterden C. J. in the same sentence uses different words we must presume that they were used in order to express different ideas."

Apart from different phraseology used in Secs. 3(1)(a) and 3(1)(b) if we refer to sub-sec. (3) of Sec. 3 it would be abundantly clear that Magistrate is required to pass an order on the application of the divorced woman. There is on limitation on him that he should determine reasonable and fair provision and maintenance only for the Iddat period. Otherwise there was on necessity to provide in sub-sec. (3) that the Magistrate should take into consideration whether the husband was having sufficient means and also to take into consideration the needs of the divorced woman. This objective criteria laid down by the Parliament i. e. the Magistrate should take into consideration the needs of the divorced woman would undoubtedly indicate that the future needs of the divorced woman are required to be taken into consideration. The future needs would by no stretch of imagination mean her past needs during the Iddat period. As the application under Sec. 3(2) is required to be filed by the divorced wife after the Iddat period if the husband fails to provide a reasonable and fair provision and maintenance within the Iddat period there was no necessity to provide that the Magistrate should consider the needs of the divorced woman because that application would come up for determination before the Magistrate after the Iddat period is over. On the contrary the Parliament has emphasized that apart from the needs of the divorced woman the Magistrate should take into consideration the standard of life enjoyed by the divorced woman during her marriage and the means of her former husband. This requirement also indicates that the Magistrate is required to determine the requirement of the wife after taking into consideration the means of her husband. If the husband is sufficiently rich then the provision and maintenance would be such that it would be possible for the divorced woman to live with the same standard of living which she enjoyed during her marriage. Therefore from this sub-sec. (3) also it can be said that reasonable and fair provision and maintenance is to be determined by taking into consideration the future needs of the divorced wife and not by taking into consideration what she required during the Iddat period and therefore it can be said that under Sec. 3(1)(a) divorced woman is entitled to have reasonable and fair provision and maintenance for her future needs depending upon number of imponderable circumstances such as likelihood of re-marriage her age and her expectancy of life and means of her former husband.

(27) The learned Advocates appearing on behalf of husbands relied upon Sec. 4 of the Act and submitted that after the Iddat period is over the divorced woman is entitled to get maintenance not from her husband but only from her relatives or from the wakf property. In my view this submission is without any substance because Sec. 4 again begins wish non-obstante clause and it provides that notwithstanding anything contained in the foregoing provisions of this Act i. e. Sec. 3 a divorced woman is entitled to file an application for getting maintenance from her relatives or from the Wakf Board as the case may be if she is not in a position to maintain herself. The essential pre-conditions for filing an application under Sec. 4 would be:

(i) She must not have re-married after the Iddat period: and:

(ii) She is not able to maintain herself after the Iddat period which may be even after a lapse of 10 years of divorce.

In my view the Parliament contemplated that even if reasonable and fair provision and maintenance is made and paid to the divorced woman within the Iddat period act she can file an application for maintenance if she is unable to maintain herself from the amount received by her or provision made by her former husband as required under Sec. 3(1)(a). Section 4 provides for only reasonable and fair maintenance while Sec. 3(1)(a) and (b) provides for reasonable and fair provisions and maintenance. Apart from the fact that two different phraseologies are used in Secs. 3 and 4 Sec. 4 contemplates a situation where the divorced woman is not in a position to maintain herself after receiving maintenance in lumpsum from her husband or provision which was found to be reasonable and fair at the time of taking divorce. In that case she is entitled to file an application for maintenance and get it from her relatives such as her children or her parents. If they are not in a position to pay it then she can claim it from the Wakf Board. Take for an example in some cases where it is thought that divorced woman is likely to re-marry and provision and maintenance is made and paid to her on that basis but subsequently it turns out that she is not in a position to re-marry for some reasons. Further if the provision which was made for her and the maintenance paid to her is not sufficient to maintain her and she is not in a position to maintain herself then she can file an application under Sec. 4 of the Muslim-Women Act. But it would not be open to her to approach the Magistrate for getting maintenance from her former husband Take other instance wherein both the parties visualize that there are no chances for remarriage of divorced woman and reasonable and fair provision is made for her future maintenance any yet for some accidental reasons she is required to spend all the amount then in that case she cannot ask her former husband to pay further maintenance This may happen because of some unforeseen illness such as cancer or such other disease or due to accidental injuries wherein the divorced woman is required to spend huge amount for curing herself or her minor children.

(28) Therefore reading Secs. 3 and 4 together it is abundantly clear that the Parliament wanted to fully protect the divorced woman so that the does not become destitute or is not thrown on the streets without roof over her head and without any means for sustaining herself and her children.

(29) Mr. Momin learned Advocate appearing on behalf of the husband submitted that if this was the intention of the Parliament then there was no necessity of enactment of Muslim Women Act because Sec. 125 of the Criminal Procedure Code as interpreted by the Supreme Court in Shah Banos case gives her right to claim maintenance from her former husband. He also submitted that the law laid down in Shah Banos case provides that Muslim divorced woman is entitled to have maintenance from her former husband if she is unable to maintain herself under the Personal Law. Taking into consideration the objects and reasons it is clear that the Parliament wanted to specify or codify the Personal Law and protect the Muslim divorced woman so that there may not be any controversy over it in future. Further under Sec. 125 of the Criminal Procedure Code the maximum amount which a divorced woman would get is only Rs. 500.00 even though her former husband is a rich person. Therefore to give her full protection or benefit this Act is enacted and her rights are specified. The Parliament has set at rest the controversy which has arisen because of Shah Banos case. It has not only provided for reasonable and fair provision and maintenance to the divorced woman and her minor children but it has also specifically provided that she is entitled to get mahr or dower amount from her former husband. Therefore this Act has set at rest the controversy that mahr or dower amount is paid to the divorced woman by the former husband for her future maintenance after divorce. The Parliament has not stopped there. It has further provided that she is entitled to get back all her properties which she had received before or at the time of her marriage or after her marriage from her relatives her friends or her husband or relatives of her husband or his friends. So if the property is given by her husband or any of the relatives of her husband or his friends such properties are also required to be given to her.

(30) Mr. Momin and Mr. Pathan further submitted that if the Parliament wanted to provide for future maintenance to the divorced woman then the Parliament would not have provided that the said amount should be paid within the Iddat period but instead of that the Parliament would have specified the time. It seems that the Parliament has provided that provision and maintenance should be made within Iddat period and should be paid within Iddat period because during that period divorced woman is not entitled to remarry and Iddat period varies as provided in Se. 2(b). Therefore the Parliament has provided that it should be paid within iddat period and not during specified period. But this Sec. 3(1)(a) is abundantly clear that within the Iddat period the former husband is bound to make provision and pay maintenance to his divorced wife. She is entitled to get reasonable and fair provision and maintenance depending upon her future needs and means of her husband as well as standard of life enjoyed by her during her marriage.

(31) Next it was contended that in view of the provisions of Muslim Women Act the orders passed by the Magistrate under Sec. 125 of the Criminal Procedure Code are non-est. This submission is also without any substance. There is no Section in the Act which nullifies the orders passed by the Magistrate under Sec. 125 of the Criminal Procedure Code. Further once the order under Sec. 125 of the Criminal Procedure Code granting maintenance to the divorced woman is passed then her rights are crystallized and she gets vested right to recover maintenance from her former husband. That vested right is not taken away by the Parliament by providing any provision in the Muslim Women Act. Under Sec. 5 an option is given to the parties to be governed by the provisions of Secs. 125 to 128 of the Criminal Procedure Code. This Section also indicates that the Parliament never inten ded to take away the vested right of Muslim divorced woman which was crystallized before the passing of the Act. Section 7 only provides that every application by divorced woman under Secs. 125 or 127 of the Criminal Procedure Code which is pending before the Magistrate on the commencement of the Act shall be disposed of subject to the provisions of Sec. 5 of the Act) by the Magistrate in accordance with the provisions of this Act. Relying upon this Section on the contrary the learned Advocates appearing on behalf of wife rightly submitted that Sec. 7 of the Act clearly indicates that there is no inconsistency between the provisions of Muslim Women Act and the provisions of Secs. 125 to 128 of the Criminal Procedure Code. The provisions of Muslim Women Act grants more relief to the divorced woman depending upon the financial position of her former husband. Further it is a well-know rule of interpretation of law that remedial amendments have to be liberally construed so as not to deny their efficacy and it is the duty of the Courts to avoid a conflict between two Sections. The Court will interpret a statute as far as possible agreeable to justice and reason and that in case of two or more interpretations one which is more reasonable and just will be adopted for there is always a presumption against the law maker intending injustice and unreason... The provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. (B. P. Khemka Pvt. Ltd. v. Birendra Bhowmick Bhowmick. referred to Madhav Rao Scindia v. Union of India AIR 1971 SC 530 [LQ/SC/1970/480 ;] ">AIR 1971 SC 530 [LQ/SC/1970/480 ;] [LQ/SC/1970/480 ;] also referred to) In my vie v as discussed above the Special Act confers more benefit upon the divorced woman and thy provisions are not in any way inconsistent or repugnant with the provisions of Secs. 125 to 128 of the Criminal Procedure Code. Further under Sec 3(2) the Parliament has given a mandate to the Magistrate to dispose of the application filed by the divorced woman within one month of the date of filing of the application. If the Magistrate finds it impracticable to dispose of the application within such period he is required to record reasons for it and dispose of the said application after the said period. Even Rule 5 of the Muslim Women (Protection of Rights on Divorce) Rules 1986 provides that the application is required to be disposed of as expeditiously as possible and once the examination of witnesses has begun the same shall be continued from day-to-day until all the witnesses in attendance have been examined unless the Court finds that adjournment is necessary for which reasons are to be recorded. That means the Parliament has provided that top-most priority should be given to the application filed by the divorced woman and it should be disposed of as far as possible within one month from the date of filing of such application. This further shows that the Parliament was mindful of the fact that proceedings under Sec. 125 of the Criminal Procedure Code are prolonged for number of years.

(32) Apart from this expeditious disposal of the matter it would be worthwhile to note that no appeal or revision is provided against the order passed by the Magistrate under Secs. 3 or 4 of the Muslim Women Act. This would mean that the Parliament wanted to see that divorced woman gets relief at the earliest without there being any delay and without there being any stay from the appellate or revisional authority. Hence it cannot be said that the orders passed under Sec. 125 of the Criminal Procedure Code become void or are non-est because of the Muslim Women Act.

(33) From the aforesaid discussion the following conclusions emerge:

(a)Under the Muslim Women Act a divorced woman is entitled to have a reasonable and fair provision from her former husband. Reasonable and fair provision would include provision from her future residence clothes food and other articles for her livelihood. She is also entitled to have reasonable and fair future maintenance. This is to be contemplated and visualized within the Iddat period. After contemplating or visualizing it the reasonable and fair provision and maintenance is to be made and paid to her on or before the expiration of the Iddat period. This contemplation may depend upon the prospect of re-marriage of the divorced woman. If the former husband falls or neglects to make or pay a reasonable and fair provision and maintenance then the divorced woman is entitled to recover it by filing an application under Sec. 3(2) of the Act. The determination of reasonable and fair provision and maintenance depends upon the needs of the divorced woman the standard of life enjoyed by her during her marriage and the means of her former husband. This conclusion is in escapable in view of the different phraseology used by the Parliament in Sec. 3(1) and its clauses and Sec. 3(3). Section 3(1)(a) contemplates reasonable and fair provision and maintenance. Section 3 lays down objective criteria for its determination. Under Sec. 3 reasonable and fair provision and maintenance is to be made and paid only for a period of two years from the respective dates of birth of children. While the Parliament has not prescribed any such period under Sec. 3(1)(a). Section 4 only provides for reasonable and fair maintenance. Apart from this even Sec. 5 gives option to the parties to be governed by the provisions of Secs. 125 to 128 of the Criminal Procedure Code.

(b) Under Sec. 4 of the Muslim Women Act a divorced woman is entitled to get maintenance from her relatives such as her children or her parents or from the Wakf Board if she is not able to maintain herself after the Iddat period from the provision and maintenance made and paid by her former husband.

(c) As per the provisions of Sec. 5 the application filed under Sec. 3(2) of the Muslim Women Act by a divorced woman can be disposed of by following the provisions of Secs. 125 to 128 of the Criminal Procedure Code if the divorced woman and her former husband file affidavits to that effect.

(e)Under Sec. 7 of the Muslim Women Act all applications filed by a divorced woman under Sec. 125 or under Sec. 127 of the Criminal Procedure Code which are pending for disposal before the Magistrate on the date of the commencement of the Act are required to be disposed of by the Magistrate in accordance with the provisions of the said Act. (e) There is no provision in the Muslim Women Act which nullifies the orders passed by the Magistrate under Sec. 125 or 127 of the Criminal Procedure Code ordering the husband to pay maintenance to the divorced woman or takes away the vested rights which are crystallized by the orders passed under Sec. 125 or 127 of the Criminal Procedure Code.

(34) In view of the aforesaid discussion there is no substance in the contentions raised by the learned Advocates for the petitioners in the Special Criminal Applications.

(35) In Special Criminal Application No. 81 of 1988 the divorced woman filed Miscellaneous Criminal Application No. 89 of 1955 in the Court of the Chief Metropolitan Magistrate Ahmedabad claiming maintenance and by the order dated 30-4-1986 the Metropolitan Magistrate fixed the maintenance at the rate of Rs. 250.00 per month. The petitioner husband has not filed any revision application against that order. Subsequently the husband preferred Miscellaneous Criminal Application No. 96 of 1986 for cancellation of the order passed by the Metropolitan Magistrate under Sec. 125 of the Criminal Procedure Code on the ground that the order passed under Sec. 125 of the Criminal Procedure Code would be non-est in view of the Muslim Women (Protection of the Rights on Divorce) Act 1986 The learned Chief Metropolitan Magistrate Ahmedabad rejected the said application by the order dated 17-6-1987 on the ground that vested rights are not taken away by the Act and that the Muslim Women Act has no retrospective effect. Against that order the husband preferred Criminal Revision Application No. 101 of 1987 before the Sessions Court Ahmedabad. It was rejected by the learned Additional City Sessions Judge Ahmedabad by his judgment and order dated 28-1-1988. Against that order the petitioner husband has filed this Special Criminal Application.

(36) Notice was issued to the wife respondent No. 1. At the request of the learned Advocates for both the parties the matter was fixed for hearing

(37) Similarly in Special Criminal Application No 586 of 1987 the present respondent No I who is the divorced wife of the petitioner filed Miscellaneous Criminal Application No. 338 of 195A in the Court of the Judicial Magistrate First Class Porbandar. By the order dated 30 10 the learned Magistrate ordered the petitioner to pay maintenance to the respondent No. 1 at the rate of Rs. 300.00 per month. Against that order the petitioner filed Criminal Revision Application No. 25 of 1985 in the Court of Additional Sessions Judge Porbandar who by his Judgment and order dated 28-9-1987 rejected the said revision application Against that judgment and order passed by the learned Additional Sessions Judge Porbandar this Special Criminal Application is filed.

(38) In this Special Criminal Application (i.e. Special Criminal Application No. 586 of 1987) the learned Advocate for the petitioner husband submitted that in view of the Muslim Women Act the order passed by the learned Judicial Magistrate First Class Porbandar granting maintenance to respondent No. 1 requires to be quashed and set aside on the ground that it is nullified by the provisions of the Act.

(39) As discussed above the orders passed by the learned Magistrates under Sec. 125 of the Criminal Procedure Code are not nullified or the Muslim Women Act does not take away vested rights. These petitions therefore require to be rejected

(40) Hence Special Criminal Application No. 81 of 1958 is rejected. Notice discharged. Special Criminal Application No. 586 of 1987 is rejected. Applications rejected.