A.K. DUTTA, J.

(1.) By the instant Revisional Application under section 401 read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), the petitioner-husband (hereinafter referred to as husband) has prayed the Court for setting aside/quashing the orders dated 4.9.92 and 15.1.93 passed by the Judicial Magistrate, 7th Court at Alipore, in M. Case No. 81 of 1989 before him on the grounds set forth therein.

(2.) The opposite-party No. 1 wife (hereinafter referred to as wife) had filed an application before the learned Magistrate for maintenance against the husband under section 125 of the Code in 1989 registered as M. Case No. 81 of 1989, contending, inter alia, that the parties were married according to Muslim Rites and Customs on 3.4.1985, and the husband had been refusing and neglecting to maintain her, she being unable to maintain herself. The learned Magistrate, upon hearing the parties, had allowed the wifes application for maintenance by order dated 15.9.90 directing the husband to pay the sum of Rs. 200 only per month to her by way of maintenance. The husband contends that after the said order he had tried to bring her back, to be refused by her without any reasonable ground, for which he was compelled to divorce her according to Mohammedan Law on 15.10.1990. He had sworn an Affidavit to that effect and had sent a copy of the declaration to her. On 3.5.1992 he had filed an application before the learned Magistrate under section 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter shortened into Act) praying for dropping of the proceedings on the aforesaid facts stated therein. The learned Magistrate after due hearing of the aforesaid petition filed by the husband (on 3.5.1992) had rejected the said application by his impugned order dated 4.9.92, and had fixed the case for payment on 29.10.92. The husband had immediately thereafter applied for certified copy of the aforesaid impugned order dated 4.9.92, and had also filed an application before the learned Magistrate for supply of the certified copy on 14.1.93. But no certified copy of the said order was delivered to him. He had prayed for time on 15.1.93 before the learned Magistrate on the ground that he had not been able to move the Higher Court in the absence of the certified copy of the aforesaid impugned order. But the learned Magistrate had directed issue of warrant of arrest against him by his order dated 15.1.93. Hence the instant Revisional Application for setting aside/quashing the aforesaid impugned orders dated 4.9.92 and 15.1.93 on the grounds made out therein.

(3.) The point emerging for consideration in this proceedings before us is whether a Muslim wife who had already obtained an order of maintenance against the husband under section 125 of the Code from a competent court after coming into force of the aforesaid Act (Act 25 of 1986) would lose the benefit of that order if she is subsequently divorced by her husband.

(4.) The parties, undeniably, were married according to Muslim Rites and Customs on 3.4.1985. Since they could not live together as husband and wife, the wife had filed the relevant application for maintenance under section 125 of the Cole in 1989 before the learned Magistrate. The learned Magistrate, upon hearing the parties, had directed the husband to pay the sum of Rs. 200 only per month to the wife by his order dated 15.9.90, not divorced by the husband. She is stated to have been divorced by the husband on 15.10.1990, just one month after the passing of the aforesaid order by the learned Magistrate. The husband had thereafter filed an application before the learned Magistrate on 3.5.92 under sections 3 and 7 of the aforesaid Act for dropping the relevant proceedings on the ground that the opposite-party No. 1 was no longer his wife, which was rejected by the learned Magistrate by his aforesaid impugned order dated 4.9.92. The learned Magistrate, as already stated above, had thereupon directed issue of warrant of arrest against the husband by his impugned order dared 15.1,93 for his failure to pay maintenance to the wife in terms of the order already passed by him on 15.9.90. Question, though not exactly identical, but of quite some relevance arose whether a divorced Muslim woman who had obtained an order of maintenance against her husband under section 125 or 127 of the Code before the coming into force the aforesaid Act 25 of 1986 would lose the benefit of that order with the advent of the said Act. The said question appears to have been answered differently by different High Courts. A Division Bench of the Guwahati High Court in the decision in Idris Ali v. Ramesha Khatun, AIR 1989 Gauhati 24, had held after an elaborate discussion that an order of maintenance already passed under the aforesaid relevant provisions of the Code would not be invalidated by the advent of the Act 25 of 1986 observing, inter alia, as follows : "We feel that legislature was very much concerned not to write off the maintenance of muslim divorced women who had already been granted maintenance earlier by a Competent Court under section 125 or 127 of the Cr. P.C. and therefore made it express that the new Act of 1986 and the provisions thereof would cover only the cases filed after the new Act came into force and those cases under sections 125 and 127 which were pending. If any retrospective effect would be given to the Act of 1986, it would result in serious complications. The legislature in its wisdom never contemplated a situation where divorced muslim women would not be given benefit which they had already acquired under the law which was in force earlier and which had been implemented under sections 125 and 127 Cr. P.C. and became final." "Consequently, there is no hesitation to hold that if a divorced muslim woman approaches the Court of a Magistrate for execution of final order already passed under sections 125 and 127 Cr. P.C. earlier to the new Act of 1986 then she will have a right to get the order executed under section 128 Cr. P.C. which section has been excluded from section 7 of the Act of 1986, and section 7 of the Act of 1986 would not take away that right. In other words section 7 would apply only to those cases which are not finalised by the Magistrate under section 125 or 127 Cr. P.C. on the date the new Act of 1986 came into force and are still pending and such application had been moved by a divorced woman, we want to make it clear that a muslim divorced woman or her husband cannot move before a Magistrate for cancellation of the order of maintenance already granted simply on the ground that the new Act of 1986 has come into force."

(5.) In view of the aforesaid decision of a Division Bench of the Guwahati High Court an order of maintenance already granted in favour of a divorced woman cannot be cancelled and the same shall very much remain in force despite the subsequent coming into force of the aforesaid Act 25 of 1986. But a Division Bench of this Court in the decision in Abdul Sattar v. Sahani Bibi and Anr., 1989 (II) CHN 203, has held to the contrary with the following observations, amongst others : "In the field of right to maintenance by a divorced Muslim woman from her husband the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 shall be operative notwithstanding provisions for maintenance in any other Act particularly in section 125 Cr. P.C. That being the position, no Muslim woman will be entitled to get a maintenance under the provisions of section 125 Cr. P.C. The non-obstante clause in section 3 of the Act is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is consistent with the new enactment. Effect of non-obstante clause is the implied repeal of the inconsistent provisions appearing in the existing law. That being the position, the provision of section 125 Cr. P.C, will have no force in respect of a divorced woman within the meaning of section 2(a) of the Act. In respect of a divorced Muslim woman if an order under section 125 Cr. P. Code was passed that order will cease to have effect on the date of commencement of the Act. Result would be that no application under section 127 or any other provisions of Chapter IX of the Cr. P.C. will be maintainable in respect of a divorced Muslim woman in whose favour an order under section 125 Cr P. C. was passed taking her to be a divorced wife."

(6.) The logic of the aforesaid decision appears to be that with the advent of the Act 25 of 1986, the provisions of the Code, which are inconsistent with the said enactment had suffered implied repeal in respect of a divorced woman, as a result of which the provisions of section 125 of the Code ceased to have effect, and consequently any obligation imposed under the aforesaid provisions must also be deemed to have ceased to have any effect on the day when the aforesaid Act come into force. A single Bench of this Court in the decision in Sk Abubakkar v. Mst. Ohidunnessa Bibi, 1992 (I) CHN 538, has observed, with due respect to the learned Judges, that it appears to it that in spite of the decision of the aforesaid Division Bench that section 125 of the Code stood impliedly repealed by the provisions of Act 25 of 1986 in respect of a divorced woman in terms thereof, the effect of such repeal is required to be tested in the light of the provisions of section 6 of the General Clauses Act, 1987. The learned Single Judge had referred to section 6(c) of the General Clauses Act which provides, inner alia, that where any Central Act made after the commencement of the General Clauses Act repeals any enactment then, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired or accrued or incurred under any enactment so repealed. That being so, the repeal does not affect any right acquired or obligation incurred under the repealed enactment "unless a different intention appears." The learned Judge, while elaborating on the point, had further observed as follows : "It may, however, be noted here that the right, privilege, obligation or liability as mentioned in the said section 6(c) however do not refer to all sorts of fluid or unsettled rights etc. in the sense of a mere hope or expectation of, or liberty to apply for, acquiring a right or imposing an obligation but what is connoted is a right already acquired or accrued or obligation already imposed. No doubt the opportunity of initiating legal proceedings for acquisition of a right under the repealed, Act is not protected, but legal proceedings for enforcing the right already acquired or accrued will be protected under section 6(c) in spite of repeal of the enactment. Such acquired of accrued right may however be defeated by repeal if such an intention (different intention) appears from the repealing enactment."

(7.) In view of the discussions made, the teamed Judge had held that the repealed enactment, namely, the Act 25 of 1986, not containing "any different intention," the intention which appears from the scheme and provisions of the aforesaid Act is to leave unaffected the orders of maintenance which had already been passed under section 125 or 127 of the Code in respect of a divorced woman before the commencement of the said Act. The learned Judge was, therefore, of the opinion that in view of section 6(c) of the General Clauses Act a divorced Muslim woman who has already obtained an order of maintenance under the aforesaid relevant provisions of the Code would still be entitled to enforce and execute the same in spite of the coming into force of the aforesaid Act. I am in complete agreement with the view so expressed by the learned Single Judge of this Court in the aforesaid decision for much the same reasons discussed therein. But sitting singly, as I do, the aforesaid contrary decision of the Division Bench of this Court is very much binding on me as well, and it would neither be competent for me to choose the decision of the Division Bench of the Guwahati High Court, as already discussed above. In view of the aforesaid decision of the Division Bench of this Court and in the absence of any contrary decision by any larger Bench of this Court or of the Honble Supreme Court I can neither hold differently on the aforesaid question. The Division Bench of this Court in the aforesaid decision in Abdul Sattar v. Sahani Bibi had further clearly observed that there may be cases where the Court had passed an order of maintenance under section 125 of the Code in favour of a wife, not being a divorced wife, and after such an order was passed the wife concerned might be divorced by the husband, as in the instant case. The learned Judges had held that if the divorce is in accordance with Muslim Law as contemplated by section 2(a) of the Act the order imposing liability to maintain the wife under section 125 Cr. P.C. will also cease. But the factum that such divorce has been granted may be a disputed question of fact. In such circumstances, either party to the proceeding under section 125 may file an application under section 127 Cr. P.C. for vacation of such order. In such a case the court would be entitled to maintain application under section 127 Cr. P.C. and pass appropriate orders on proof of the factum of divorce as contemplated by section 2(a) of the Act. Section 7 of the Act will not be a bar in respect of such application under section 127 Cr. P.C. The Division Beach appears to have echoed the decision of a Single Bench of this Court in the decision in Dolna Khatoon v. Jamaluddin Ahmed and Anr., 1987 (II) CHN 469, wherein M. G. Mukherjee, J. had held that the maintenance of a minor daughter cannot in any manner be affected with the filing of an application under section 127 of the Code, read with sections 3 and 7 of the aforesaid Act 25 of 1986; but with regard to the wife who is said to have been divorced subsequently by the husband the factum of such divorce has to be proved by cogent evidence in a proceeding under section 127 of the Code. Sitting singly, I can neither rule differently from the aforesaid decision of the Division Bench of this Court.

(8.) In the relevant proceedings before us the husband appears to have filed an application before the learned Magistrate on 3.5.92 graying for dropping of the relevant proceedings in terms thereof on the ground, that he was compelled to divorce the wife according to Mohammedan law on 15.10.90 and the latter was no more his wife, strongly disputed by her. No evidence appears to have been presented by him before the learned Magistrate to prove the factum of the alleged divorce. A declaration only appears to have been subsequently made by him before the Notary Public at Alipore, 24-Parganas (South) on 16.1.91, though the alleged divorce took place on 15.10.90, which seems significant and observable. The implication appears to be immediately apparent and obvious, giving the clearest and conclusive indication that the aforesaid declaration was subsequently made by him to create an evidence of divorce to avoid his liability to pay maintenance to the wife under the Courts relevant order dated 15.9.90, which was never challenged by him. Such a bare declaration by the maker himself, which was neither contemporaneous with the alleged divorce on 15.10.90, without anything more, could hardly be deemed to be a proof of the factum of the alleged divorce. With things as they are on record, the factum of the alleged divorce does not at all appear to have been proved by the husband.

(9.) In terms of section 2 of the Act 25 of 1986 "divorced woman" under the Act means a Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law. It would be pertinent to note that the Muslim law recognizes the following forms of divorce : (1) By the husband at his will without the intervention of the court, known as talak. A Mohamedan husband who has attained puberty may divorce his wife whenever he desires without assigning any reason. Talak may be oral or in writing. There are three modes of talak, namely, (i) talak ahsan (ii) talak hasan, (iii) talak-ul-bidat or talaki-badoi. When talak becomes irrevocable the divorce is complete. (2) By mutual consent between husband and wife, without the intervention of the Court. This may take two forms, khula or mubarat. (3) By a judicial decree at the suit of the husband or wife. (4) A wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage ; but she may on certain grounds obtain divorce by judicial decree under the Dissolution of Muslim Marriage Act, 1939.

(10) Even though under section 308 of the Mohammedan Law (Mullas Principles of Mohammedan Law) Say Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause, a Division Beach of the Gauhati High Court in the decision in Zeenat Fatema Rashid v. Md. Iqbal Anwar, 1993(2) Crimes 853, has held that a Mohomedan husband curator divorce his wife at his whim or caprice, and divorce must he for a reasonable cause and it must be preceded by a pre-divorced conference to arrive at a settlement, with which I fully concur. Though under the aforesaid section 308 of the Mohammedan Law the husband is not required to assign any cause for the divorce, but there must be reasonable Cause for the same, which should be preceded by a predivorce conference so as to make an endeavour for reconciliation between the parties, if possible. But no reasonable cause has been disclosed by the husband in the relevant proceedings for the alleged divorce. There is neither the merest and faintest whisper by him that the alleged divorce on 15.10.90 had been preceded by a pre-divorce conference to arrive at a settlement. That being so, even most charitably assuming for the sake of argument that the husband had divorced the wife on 15.10.90, the alleged divorce could not be held to be according to Muslim Law. He is, therefore, under legal liability to pay for maintenance the wife in terms of the learned Magistrates order dated 15.9.90, not challenged by him.

(11.) The petitioner-husband does not further appear to have come up before this Court with clean hand and true case.

He has stated in paragraphs 9, 10 and 12 of the Revisional Application that immediately after the passing of the impugned order dated 4.9.92 by the learned Magistrate he had applied for certified copy thereof and had deposited the estimate cost on 9.9.92. On his failure to get the certified copy, he had also applied before the learned Magistrate-in-Charge on 14.1.93 for supply of the certified copy for enabling him to move the higher court against the said order. But no certified copy was delivered to him for enabling him to move the higher court. But it would oddly appear from the Report dated 23.2.93 from the Registrar, A.S., as also the Reports of the Chief Judicial Magistrate, the Magistratein-Charge of the Copying Department at Alipore, and the Report submitted by the Head Committee Clerk concerned, on record, that the husband did not file any requisite of folios till 22.2.93 for which certified copy could not be supplied to him, as applied for by him. The impugned order was passed by the learned Magistrate on 4.9.92 and the instant Revisional Application has been filed on 8.2.93, a little more than five months therefore, which clearly appear to be a belated endeavour by him to avoid his liability to pay maintenance to the wife on a false and frivolous plea that the certified copy of the impugned order was not supplied to him.

(12.) Upon the premises above, the instant Revisional Application is clearly liable to fail, as it must. The Revisional Application is accordingly rejected with cost of Rs. 1,000/- only payable by the husband to the wife for the reasons stated above.

(13.) The Interim Order of Stay dated 4.3.93 passed by this Court stands vacated. The learned Magistrate is directed to enforce the order of maintenance passed by him in the relevant proceedings with utmost expedition. Application rejected with cost.