Andhra HC (Pre-Telangana)
Shaik Mahboob Basha vs Shaik Karimunnisa Begum And Ors. on 31 March, 1989
ORDER
1. These two petitions are filed under section 482 Cr.P.C. to quash the proceedings in Criminal Revision Petitions Nos. 41 and 68 of 1988 on the file of the Addl. Sessions Court, Nellore.
2. The brief facts of the case are : The wife and children of the petitioner-husband filed a petition under section 125 Cr.P.C. for grant of maintenance before the Magistrate's Court at Kavali. The Magistrate while granting maintenance to the children rejected the claim of the wife. Therefore, the wife as well as the husband, both filed revisions before the Sessions Court to the extent they were aggrieved. Pending those two revisions, the petitioner filed two petitions to dispose of the revisions in his favour by discharging him from the liability on the ground that the Magistrate without transposing the proceedings initiated under section 125 Cr.P.C. into those under the Muslim Women's (Protection of Rights and Divorce) Act (hereinafter referred to as 'the Act') as directed by S. 7 of the Act disposed of the same. The Sessions Court dismissed those two petitions. Hence these two petitions before this court.
3. Admittedly the petition filed under section 125 Cr.P.C. was disposed of by the Magistrate after the Act came into force. Without observing the directions issued by S. 7 of the Act. Section 7 reads as under :
"Section 7 : Transitional provision : Every application by a divorced woman under section 125 or under section 127 of the Cr.P.C., 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act shall, notwithstanding anything in that Code and subject to the provisions of S. 5 of the Act be disposed of by such Magistrate in accordance with the provisions of this Act."
At this juncture, it is necessary to notice that S. 3(1)(b) of the Act "Section 3 : Mehar or other properties of Muslim woman 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) ......
(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."
postulates provision and maintenance to be made and paid for the children till they complete the age of two years only. Therefore, in so far as children aged above two years are concerned, they cannot derive any help from the provisions of the Act and the only recourse available is S. 125 Cr.P.C. Consequently, for cases of this nature the application of the provisions of S. 7 of the Act cannot be extended. In this case, admittedly by the date of filing of the application under section 125 Cr.P.C. the children were above two years and were also minors. Therefore, the husband petitioner cannot be heard to say that the Magistrate without resorting to the course postulated by S. 7 has awarded maintenance to the children of the pending proceedings under Section 125 Cr.P.C.
4. It is then contended that in view of the coming into force of the Act the remedy under section 125 Cr.P.C. is no more available. There is no express provisions in the Act repealing the provisions of S. 125 Cr.P.C. As laid down by the Queen's Bench. in West Ham Church Wardens and Overseers v. Fourth City Mutual Building Society, (1892) 1 QB 654 at p. 658 to find out whether there is an implied repeal the test is :
"The test of whether there has been a repeal by implication by subsequent legislation is this : are the provisions of a later Act so inconsistent with or repugnant to, the provisions of an earlier Act that the two cannot stand together."
5. Therefore, it is to be seen whether there is any repugnancy between the provisions of S. 125 Cr.P.C. and those of the Act. The Supreme Court in Municipal Council v. T. J. Joseph, has indicated that the tests applied for solving the question of repugnancy under Art. 254 of the Constitution can as well as applied to find out whether there is implied repeal, and for that it should be seen :
"(1) Whether there is direct conflict between the two provisions; (2) Whether the Legislature intended to lay down as exhaustive Code in respect of the subject matter replacing the earlier law; (3) Whether the two laws occupy the same field."
As regards the first point, it is to be noted that there is absolutely no provision in the Act governing the question of maintenance of children aged above 2 years and therefore the question of conflict does not arise. Had the Legislature intended to lay down as exhaustive Code in respect of the children also, it would have provided one way or other as regards the children of above 2 years in the Act and therefore the Act is not exhaustive in so far as children as such are concerned. Adverting to the third point the provisions of the Act and those of S. 125 Cr.P.C. in respect of children of above 2 years do not occupy the same field since the former are silent as regards the maintenance of children aged above 2 years. Thus, there is absolutely no repugnancy between the two in so far as children aged above 2 years are concerned. It, therefore, follows that it cannot even hold that there is implied repeal of Section 125 Cr.P.C. as regards the children of above 2 years. Consequently, the provisions of S. 125 Cr.P.C. are intact and unaffected for being resorted to when once the children have crossed the age of 2 years. In this view of the matter, I find no force in the contention that the children, who are admittedly of above 2 years in this case are not entitled to maintenance under section 125 Cr.P.C.
6. It is next submitted that the revision filed by the wife is not maintainable since after the advent of the Act no relief u/s. 125 Cr.P.C. can be granted to the wife whether it is in appeal or revision since such remedies are simply continuations of the original proceedings. It is to be seen that S. 7 of the Act gets attracted only if the application under section 125 Cr.P.C. is pending before the Magistrate. The revision is a continuation of the original proceedings still since S. 7 of the Act gets attracted only to cases pending before the Magistrate on the date of coming into force of the Act and also because the Act itself is not applicable to the children in this case since they crossed two years of age the proceedings cannot now in revision be converted into those under the Act. Similar was the question before a Division Bench of the Gauhati High Court in Idris Ali v. Ramesha Khatun, AIR 1989 Gauhati 24. It was held there that S. 7 would apply only to those cases which are not finalised by the Magistrate under section 125 or 127 Cr.P.C. the date when the new Act came into force. This contention is not accordingly tenable.
7. The last argument that the order granting maintenance to the children, even if they are less than 2 years, by the Magistrate after coming into force of the Act without having resorted to Section 7 of the Act is a nullity, cannot be countenanced since S. 7 is only in the nature of a directive and its non-observance does not vitiate the proceedings. This aspect has been discussed at length in Criminal Revin. Case No. 577 of 1987 disposed of today (reported in 1989 Cri LJ 2285 (AP)) and that reasoning would apply equally to this case.
8. For the aforesaid reasons, both these petitions are dismissed.
9. Petition dismissed.