JUDGMENT A.N. Gupta, J.
1. This case has a long chequered history concerning a Muslim wife who has not been able to get maintenance allowance inspite of the fact that she had moved an application for the purpose on 17th September, 1974 under Section 125 Cr.P.C. as would be clear from what follows.
2. Mst. Zohra Revisionist No. 1 is the mother of Mohd. Ismail, Revisionist No.2. He was born of the wed-lock of Smt. Zohra and her husband Mohd. Ibrahim who is opposite party to the revision. She obtained a decree of dissolution of her marriage on 15.11973 under the provisions of Dissolution of Muslim Marriages Act, 1939. She filed a petition Under Section 125 Cr.P.C. on 17.9.1974 for grant of maintenance allowance for herself and for her son. Her husband resisted the petition on the ground that since the marriage had been dissolved by a decree of dissolution by Civil Court, she was not entitled to any maintenance allowance. This defence of the opposite party did not find favour with the Special Judicial Magistrate, Barabanki who by his order dated 29.12.1976 allowed the petition under Section 125 Cr.P.C. and directed the opposite party to pay a sum of Xs. 100/- per month in all as maintenance allowance for both the revisionists holding that the revisionists had been neglected by opposite party without any reasonable and probable cause. This order of the learned Magistrate was upheld in revision by the learned Sessions Judge. Therefore, the opposite party approached this Court Under Section 482 Cr.P.C. wherein it was held that because of dissolution of marriage Smt. Zohra was not entitled for any maintenance allowance for herself but it was directed that the opposite party shall be paid maintenance allowance @ 40/- p.m. for her son.
3. After the said decision of this Court Smt. Zohra filed a Special Leave Petition against the said judgment before Hon'ble Supreme Court. In the Supreme Court the opposite party did not appear initially, and therefore, the matter was heard ex-parte there. On February 18,1981, a Bench of three Hon'ble Judges of Supreme Court allowed the appeal of Smt. Zohra by holding that Smt. Zohra was entitled for maintenance allowance for herself as well as for her son. Accordingly, the order passed by this Court was set aside.
4. The opposite party moved an application before Hon'ble Supreme Court for setting aside its judgment dated February 18,1981 on the ground that notice of lodgment of appeal was not served upon him. This plea of the opposite party was accepted by Hon'ble Supreme Court on September 24,1981 restoring the appeal but passed an interim order that till the disposal of appeal opposite party shall pay maintenance allowance @ Rs. 100/- for Smt. Zohra and @ Rs. 40/- per month for her son w.e.f. September 17,1974 i.e. from the date of the petition Under Section 125 Cr.P.C. It was also directed that opposite party did not deposit the amount as directed by Hon'ble Supreme Court.
5. When the appeal preferred by Smt. Zohra again came up for hearing it was allowed by Hon'ble Supreme Court vide its judgment dated November 26, 1985. The Hon'ble Supreme Court held that in view of decision of the Constitution Bench of that Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, a Muslim wife whose marriage has been dissolved by a decree of Court, was still entitled to maintenance under Section 125 Cr.P.C. In fact, the bench of three Hon'ble Judges of Supreme Court held it so in its judgment of February 18, 1981 after considering the entire law on the subject. The appeal of Smt. Zohra was allowed by Hon'ble Supreme Court and judgment of this Court was set aside. It was directed that opposite party shall pay maintainable allowance @ Rs. 140/- per month i.e. Rs. 100/- per month for Smt. Zohra and Rs. 40/- per month for her son w.e.f. September 17,1974 i.e. the date of filing of petition. It was further directed that opposite party shall pay arrears of maintenance allowance at the above rates within three months from the date of judgment. On behalf of Smt. Zohra a prayer was also made before Hon'ble Supreme Court that in view of the increased cost of living the amount of maintenance should be increased. In this behalf it was directed that it was open to her to approach the concerned Magistrate Under Section 127(1) Cr.P.C. for increasing the maintenance allowance.
6. After Supreme Court's judgment dated November 26, 1985 awarding maintenance allowance to Smt. Zohra @ Rs. 100/- and to her son @ 40/- per month, the opposite party did not pay any amount inspite of clear directions of Hon'ble Supreme Court that the opposite party shall pay the arrears within three months from the date of the judgment. Compelled by these circumstances Smt. Zohra moved an application on 27.2.1986 Under Section 125(3) Cr.P.C. for execution of order praying for the recovery of Rs. 19.225/- as maintenance allowance. On the notice having been issued to the opposite party, he filed objections. One of the objections which has found favour with the learned Magistrate was that in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act') Smt. Zohra was not entitled to get any maintenance allowance and the order could not be executed. The learned Judicial Magistrate, Barabanki vide his order dated 7.7.1986 held that an application for execution. under Section 125(3) Cr.P.C. is also covered by the provisions of Section 7 (sic.) of the said Act inasmuch as it falls within Section 125 and, therefore, order for maintenance allowance cannot be got executed by a wife whose marriage has been dissolved in accordance with the provisions of the Dissolution of Muslim Marriages Act, 1939. He allowed the objections of opposite party and rejected execution application of Smt. Zohra. It is against his order dated 7.7.1986 that Smt. Zohra and her son have approached this Court by filing this revision.
7. Mohd. Ibrahim, husband of Smt. Zohra, did not put in appearance in this Court inspite of the fact that he had been served and this revision has been pending ever since 1986. Therefore, this revision is being disposed of on merits after hearing learned Counsel for the revisionist.
8. The only question for consideration in this revision is as to whether a Muslim wife whose marriage had been dissolved at her instance by means of a Court decree under the provisions of Dissolution of Muslim Marriages Act, 1939 prior to the enforcement of the Act and whose application for maintenance allowance had been allowed Under Section 125, Cr.P.C. prior to the enforcement of the Act, is entitled to get it executed after the commencement of the Act, when her application for execution was pending at that time the said Act came into force. The Act came into force w.e.f. May 19,1986. The decree of dissolution of marriage was passed on 15.1.1973 i.e. prior to the commencement of the Act. The petition Under Section 125, Cr.P.C. was moved on 17.9.1974 i.e. prior to the commencement of the Act. It was allowed by learned Magistrate on 29.12.1976. The revision by learned Sessions Judge was also dismissed prior to enforcement of the Act. This Court also disposed of the petition of opposite party under Section 482, Cr.P.C. prior to the enforcement of the Act. The Hon'ble Supreme Court also finally disposed of the appeal of Smt. Zohra on November 26, 1985 awarding maintenance allowance which means that the judgment of Hon'ble Supreme Court was also moved by Smt. Zohra on 27.2.1986 i.e. prior to commencement of the Act. It has been rejected by*the learned Magistrate on 7.7.1986 i.e. after commencement of the Act. It follows from this that the execution application of Smt. Zohra Under Section 125(3) Cr.P.C. was pending when the Act came into operation.
9. Before proceeding further, it appears necessary to have a glance of relevant provisions of Code of Criminal Procedure and the Act. Section 125 Cr.P.C. gives a right to a wife who is unable to maintain herself, to get maintenance allowance from the husband who inspite of having sufficient means neglects or refuses to maintain her. Sub-section (3) of the said section provides for execution of order of maintenance allowance in case it is not obeyed by the husband. It reads as follows :
"125 Order for maintenance of wives, children and parents : (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) to (d)..................
a Magistrate .of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided.......................
Explanation....................
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :
Provided...........................
Provided...........................
Explanation........................
(4) and (5) ................. order"
Section 126 provides the procedure. Section 127 lays down that on proof of a charge in the circumstances of any person receiving Under Section 125 a monthly allowance or ordered under the same section to pay a monthly allowance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the amount as he thinks fit within an upper limit of Rs. 1000/- per month. Section 125 provides enforcement of order of maintenance by a Magistrate of any place where a person against whom it is made, may be residing. It reads as under :
" 128. Enforcement of order of maintenance-
A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due."
10. The preamble of the Act lays down that it is 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 there to Section 3 of the Act lays down that a divorced Muslim woman shall be entitled to maintenance for the iddat period, which snail be payable by her husband. It also makes provision for down payment of mehr or dower and restoration of properties given to dower and restoration of properties given to wife before or after her marriage and payment of maintenance for the children born of the wed-lock for a period of two years from respective dates of birth of such children provided such children are being maintained by their mother. Section 4 provides that if after the iddat period the Magistrate is satisfied that divorced Muslim woman has not re-married and is not able to maintain herself, 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. Section 5 of the Act gives option to a Muslim couple to agree to submit to the jurisdiction of the Court under Sections 125 to 128 of the Code of Criminal Procedure. Section 6 empowers the Central Government to make rules for carrying out the purposes of the Act. Section 7 relates to transitional provisions, on which the learned Magistrate while passing the impugned order has placed reliance. It reads as under :
7. Transitional provisions: Every application by a divorced woman under Section 126 or under Section 127 of the Code of Criminal Procedure, 1973 (2 of 1974), pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act."
11. A perusal of Section 7 of the Act shows that it has been clearly provided that any application by divorced Muslim woman under Sections 125 and 127 of the Code of Criminal Procedure pending before the Magistrate on the commencement of the Act shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by the Magistrate in accordance with the provisions of the said Act. It follows that any application pending at the time of commencement of the Act under Section 125 or 127 of the Code of Criminal Procedure has to be disposed of in accordance with the provisions of the Act which means that a divorced woman is entitled to maintenance allowance from her husband for the period of iddat as provided Under Section 3(l)(a) of the Act. Section 7 includes whole or Sections 125 and 127. The view taken by learned Magistrate is that since Section 7 includes whole of Section 125 Cr.P.C. an execution application moved or filed under Sub-section (3) of that section also gets covered by the provision of Section 7 of the Act. It has already been mentioned above that execution application was filed by Smt. Zohra Under Section 125(3) Cr.P.C. on 27.2.1986 i.e. prior to the commencement of the Act and was pending at the time when the Act came into force.
12. The Act has not been made retrospective in effect. It is only prospective. Under Section 7 the retrospective is only to the limited extent that the application Under Section 125 Cr.P.C. or Section 7 of the Act, still pending at the time of commencement of the Act, shall be disposed of in accordance with the provisions of the Act. The Act nowhere lays down that orders for maintenance allowance passed prior to the commencement of the Act, shall also be subject to the provisions of the said Act. Further, Section 7 of the Act includes only Sections 126 and 127. It does not include Section 128. Had the intention of Parliament been to nullify those orders for maintenance which were passed prior to commencement of the Act, it should have also included Section 128 Cr.P.C. under Section 7 of the Act. Section 128 is in addition to Section 126(3) Cr.P.C. In fact, latter sub-section empowers the Magistrate who has passed order of maintenance allowance to execute that order. Section 128 .mainly is meant for those Magistrates who had not passed order for maintenance allowance but under whose jurisdiction the person against whom the said order is passed comes to reside subsequently. It empowers such Magistrate under whose jurisdiction subsequently a person against whom order of maintenance has been passed comes to reside to enforce the order. If Section 7 of the Act is construed to mean that even an execution application Under Section 125(3) Cr.P.C. is also covered, it would follow that the Magistrate who had passed the order of maintenance allowance is prohibited from enforcing that order but the other Magistrate under whose jurisdiction the person against whom such order is made, comes to reside, continues to hold the power to execute that order. It would be an anomalous situation and such an interpretation cannot be put to Section 7 of the Act. Again/ Section 7 refers to both, namely. Sections 125 and 127 Cr.P.C. Section 127 is regarding alteration of maintenance allowance in the changed circumstances. Therefore, when Section 7 of the Act also includes Section 127, it follows that by including Section 125 alongwith Section 127, the main petition under Section 125 Cr.P.C. for awarding maintenance alone is included and it does not include execution application under Sub-section (3). Apart from this, execution of an order is almost a ministerial act and is a consequence of the order or a decree passed by a Court. It does not create any substantive right. The substantive rights are created by a Court's decree or an executable order. Since substantive right has not been taken away specifically by giving retrospective operation to the Act, an order of maintenance allowance passed before commencement of the Act cannot be said to be affected by the provisions of the Act, in the least by Section 7 of the said Act. It has also to be kept in mind that Smt. Zohra had acquired a vested right of getting maintenance allowance from her husband hi respect of herself and her son which had been recognised right up to the Hon'ble Supreme Court and this vested right cannot be taken away without specific provisions to that effect in the Act or without giving retrospective effect to it. The Act does not lay down that any order passed by a Court for maintenance in favour of a Muslim woman would become void and would be revised in accordance with the provisions of the said Act. The view that the Act does not affect the orders passed for maintenance allowance prior to the commencement of the Act, has been taken by this Court earlier also in the cases of Mohd. Azizur Rahman Khan v. Smt. Ibrat Ara, 1989 Lucknow Criminal Reports 7 and Smt. Shamia Bano v. Nohd. Ismail, 1992 Lucknow Criminal Reports 168. Similar view had been taken by Karnataka High Court in the case of Abdul Khader v. Razia Begum, 1991 Cri. L.J. 247. Similar view has been taken by a Division Bench of Gauhati High Court in the case of Idris Ali v. Ramesha Khatun, AIR 1989 Gauhati 24. Learned Counsel for revisionist also placed his reliance on a decision of Gujarat High Court given in the case of Arab Ahemadhia Abdulla etc. v. Arab Bail Mohamuna Saiyadbhai etc. AIR 1988 Gujarat 141. In this decision it has been held that a divorced woman is entitled to maintenance even beyond iddat period in spite of the provisions of the said Act. It further lays emphasis on the preamble of the Act and Section 3 of the Act which requires Registrar to dispose of the application moved by a wife within a month. With respect I do not agree with this decision because the Act restricts right of divorced Muslim woman to get maintenance allowance from her husband only for a period of iddat and beyond that period she may get maintenance allowance from her relatives who are entitled to succeed her property on her death.
13. Thus, provisions of Section 3 of the Act are confined only for awarding of maintenance allowance for iddat period, payment of mehr or dower and return of property given to the wife before, or at the time of or after her marriage by her relatives or friends and payment of maintenance to the wife for the children born from the wed-lock for a period of two years from the date of their respective birth. Section 3 does not go beyond these limitations. It follows that in accordance with the provisions of the Act a Muslim woman is not entitled to after commencement of the Act for maintenance allowance from her husband beyond iddat period.
14. In view of the above discussion, the revision is allowed. The order dated 7.7.1986 passed by Judicial Magistrate I Class, Barabanki is hereby set aside. The case is sent back to the learned Magistrate for executing order of maintenance allowance against opposite party under the provisions of Section 125(3) Cr.P.C.