Punjab-Haryana High Court
Maj. Rauf Ahmed vs Kanwar Anjam Jamali on 21 March, 1990
Equivalent citations: (1990)98PLR33
ORDER S.S. Grewal, J.
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) read with Article 227 of the Constitution of India relates to quashment of the order of Sessions Judge, Hissar, dated 12.12.1988 whereby revision against the order of Sub Divisional Magistrate, Hansi, dated 19.1.1988 directing the attachment of 1/3rd salary of the petitioner to the extent of Rs. 4868/- was dismissed.
2. In brief facts relevant for the disposal of this petition, are, that Judicial Magistrate 1st Class, Hansi, vide order dated 7th June, 1983 granted maintenance at the rate of Rs. 400/- per month on the application under Section 125 of the Code moved by the present respondent as divorced wife of the present petitioner. Revision filed against the order granting maintenance was dismissed by Sessions Judge, Hissar on 4th August, 1984. Subsequently the respondent moved an application under Sections 125(3) and 128 of the Code to claim the balance amount of maintenance allowance of Rs. 4868/- due to her upto 31.12.1987. The said application was allowed by Sub Divisional Judicial Magistrate, Hansi, vide his ex pare order dated 19.1.1988 whereby 1/3rd salary to the extent of Rs. 4868/- was ordered to be attached. Revision against the said order was dismissed by the Sessions Judge, Hissar, vide his impugned order dated 12.12.1988 as already indicated above.
3. Learned counsel for the parties were heard.
4. The respondent who is a Muslim divorced wife has a right to claim maintenance under Section 125 of the Code in view of the authorities of the apex Court in Mst. Zohra Khatoon v. Mohd Ibrahim, 1986 (2) C. L. R. and Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.
5. It was vehemently argued on behalf of the petitioner husband that after coming into force of the Muslim Women's (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986) (hereinafter referred to as the Act) with effect from 19.5.1986, the respondent who is a divorced Muslim wife cannot claim maintenance under Section 125 of the Code. It was further submitted that accordance to Section 7 of the Act, claim of a divorced Muslim wife, for maintenance upto 14.10. 1986 (till the expiry of the iddat period) was maintainable and her claim for maintenance subsequent to the said period would be governed by the provisions of the Act.
6. Provisions of the said Act which are relevant for the grant of maintenance or for realisation thereof are reproduced as under :--
"Section 3 : Mahr or other properties of Muslim women to be given to her at the time of divorce : (1) Notwithstanding anything contained in any 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 iddat period by her former husband;
(b) xxx xxx XXX (c) xxx xxx xxx (d) xxx xxx xxx
(2) Where a reasonable and fair provision and maintenance of the amount of mahr or dower due has not been made or paid or the properties referred to in Clause (d) of Sub-section (1) have net 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- Section (2) by a divorced woman, the Magistrate may, if he is satisfied that :--
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children or
(b) xxx xxx xxx xxx XXX XXX XXX XXX 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 women as he may determine as fit and proper having regard to the weeds 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- section (1) to the divorced woman :
Provided that if the Magistrate finds it impracticable to dispose of application within the said period, he may for reasons to be recorded, by him dispose of the application after the said period "
"Section 5. Option to be governed by the provisions of Section 125 to 128 of Act, 2 of 1974 :--
If on the date of the first hearing of the application under Sub-section (2) of Section 3, a divorced woman and her former husband declared 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 Section 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 3974), and file such affidavit or declaration in the Court bearing 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 the attendance of the respondent to the application."
"Section 7 : Transitional provisions :
Every application by a divorced woman under Section 125 or 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."
7. In the instant case admittedly the application for grant of maintenance under Section 125 of the Code to the respondent, who, is a divorced wife as well as revision against the said order had been dismissed much before the coming into force of the Act on 19.5.1986. The said order has not so far been varied under Section 127 of the Code. Nor any such proceedings were pending at the time the aforesaid Act came into force and as such the said order had acquired finality before the commencement of the Act on 19.5.1986. A careful perusal of the relevant provisions of the Act leave no manner of doubt that there is no specific provision with regard to enforcement of the order of maintenance which had already become final under the Code before coming into force of the Act. Thus the provisions with regard to enforcement of such order contained in Section 128 of the Code would hold good even after coming into force of the Act. Neither the provisions of Sections 3 and 4 of the Act, which, are in general terms, nor, the provisions of Sections 5 or 7 of the Act or in the absence of any other specific provisions of the Act would in any manner bar the applicability of the provisions of Sections 125 to 128 of the Code to the facts and circumstances of the present case. Thus the provisions of Section 128 of the Code would be applicable to the claim proceedings for recovery of maintenance from the petitioner-husband even in respect of the period subsequent to coming into force of the Act as far as the respondent-wife is concerned. I find support on this point from Single Bench authority of this Court in Smt. Hazran v. Abdul Rehman, 1989 (1) Recent Cr. R. 113.
8. For the foregoing reasons, I do not find any cogent ground to interference with the impugned orders rightly passed by the Courts below. This petition is accordingly dismissed.