Calcutta High Court
Sk. Abubakkar vs Mst. Ohidunnessa Bibi on 29 April, 1992
Equivalent citations: 1992CRILJ2826
ORDER Gitesh Ranjan Bhattacharjee, J.
1. This criminal revision has been filed under Section 482 and Section 401 of the Code of Criminal Procedure for quashing the execution case No. 7 of 1987 (arising out of Misc. Case No. 64 of 1982) pending in the Court of the learned Judicial Magistrate, 2nd Court, Arambagh in the district of Hooghly. The opposite party herein filed an application under Section 125, Cr. P.C. against the petitioner herein on 12th October, 1982 claiming maintenance for herself and her child. The petitioner and the opposite party are both muslim by religion and they were married in the year 1964. That marriage was however dissolved by a Talaknama executed on 10th November, 1969. In the meantime however a child was born to them in April, 1969. The application for maintenance filed under Section 125, Cr. P.C. was allowed by the learned Magistrate on 30th September, 1983 and the learned Magistrate granted maintenance at the rate of Rs. 100/- per month for the wife and Rs. 50/-per month for the child with effect from 1st September, 1983. The said maintenance order was put to execution by the divorced wife in the impugned execution case No. 7 of 1987 which was started on 9th March, 1987. Distraint warrant was issued in that execution case against the petitioner herein and subsequently he was arrested on the strength of a warrant of arrest issued against him in the said execution case. However, he was released on bail on condition of making payment of the arrear maintenance. The petitioner has now come up before this Court for quashing the said execution proceeding, mainly on two grounds, namely (1) that with the advent of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986) --which came into force on 19th May, 1986 -- a divorced muslim woman is not entitled to any maintenance from her former husband with effect from the said date, and (2) that the impugned execution proceeding is barred by limitation. It is also the case of the petitioner herein that after his arrest and during the pendency of the impugned execution proceeding he has already paid in instalments a sum of Rs. 4,990/- towards the maintenance. It was also canvassed on behalf of the petitioner herein as the third ground in assailing the execution proceeding that the warrant of arrest was issued against him without waiting for the execution report of the distraint warrant.
2. Taking the last ground first, it appears from the certified copy of the order-sheets of the impugned execution case that there was order on 20th February, 1988 for issuing distraint warrant against the petitioner herein but as that was not issued for some reason, there was a fresh order on 3rd January, 1990 for issuing distraint warrant fixing 17th February, 1990 for E.R. (execution report). No execution report was, however returned. The learned Magistrate issued warrant of arrest against the present petitioner by his order dated 10th August, 1990 when No. E.R. of the distraint warrant was yet received. In this connection, we may refer to Sub-section (3) of Section 125, Cr. P.C. which provides that if any person fails without sufficient cause to comply with the order of maintenance, the 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 the warrant, to imprisonment for a term which may extend to one month or until payment, if sooner made. It is, therefore, evident that warrant of arrest, obviously for the purpose of effecting imprisonment of the person liable to pay maintenance should not be issued unless the whole or any part of the maintenance due remained unpaid after the execution of the distraint warrant. Therefore, the warrant of arrest should not be issued before receiving the execution return of the distraint warrant and before ascertaining therefrom whether the whole of the maintenance recoverable or any part thereof has yet remained unpaid after the execution of such distraint warrant. The Magistrate should not issue warrant of arrest before return and consideration of the execution report of the distraint warrant. That question is however only of academic interest in the case now inasmuch as the petitioner herein is no more in custody and also because any irregularity in the matter of issuing warrant of arrest will not vitiate the entire execution proceeding.
3. The question of limitation as raised by the petitioner herein is also not wholly without substance. The first proviso to Sub-section (3) of Section 125 provides that no warrant shall be issued for the recovery of any amount due under Section 125 unless the application be made to the Court to levy such amount within the period of one year from the date on which it became due. There is no doubt that the said proviso does not wash away the liability to pay arrear maintenance which has become due under the order passed by the learned Magistrate. The proviso only puts a bar against recovery of such amount by issuing warrant for recovery of the amount for the past period beyond one year from the date on which the application was made for levying the same in that manner. In the present case, since the application for execution of the maintenance order in the manner provided in Section 125, Cr. P.C. was filed about three and half years after the passing of the maintenance order, clearly the arrear amount for the entire back period was not recoverable by issuing warrant or levying the amount by distraint warrant and any distraint warrant could not have been issued for recovery of maintenance for any past period beyond one year from date of the application for realization of the same in that manner. It has been argued by Mr. Habibullah appearing for the opposite party herein that the entire amount for the whole of the back period became due when the execution was filed and therefore there was no question of the application for execution being barred by limitation. This argument of Mr. Habibullah, I must say, is not tenable. Under a maintenance order when any one is directed to pay maintenance at a certain rate per month the maintenance amount for every month, unless otherwise directed, becomes payable in that month, but if not paid during the month it becomes recoverable on the expiry of the month and therefore the application for recovery of the same will have to be made within one year from the expiry of that month, except, of course where any maintenance for any back period becomes payable by virtue of any subsequent order of Court in which case the arrear becomes payable on the date of the order of the Court or on such future date, if any, as may be fixed by the Court for payment.
4. Now coming to the main question as to whether the opposite party herein, being a divorced muslim woman is entitled to maintenance from her former husband on the basis of an order of maintenance passed under Section 125, Cr. P.C. long before the advent of the Act 25 of 1986, Mr. Himangshu Kumar Dey appearing for the petitioner submitted that under the provisions of Act 25 of 1986 a divorced muslim woman is not entitled to any maintenance from her former husband except for the period of iddat. He further submitted that whatever might have been the law before the said Act 25 of 1986 came into force, this much is certain that the right of a muslim divorced woman to receive maintenance from her former husband beyond the period of iddat ceased as soon as the said Act came into force and thereafter her right to maintenance is governed by the provisions of the said Act. Mr. Habibullah on the other hand, submitted that Section 3 of the Act of 1986 provides inter alia that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Mr. Habibullah laid emphasis on the expression 'within the iddat period' used in that connection in Section 3 of the said Act and submitted that the said expression only shows that the husband's liability to make reasonable and fair provision of maintenance has to be discharged within the iddat period and it is not that such liability to pay maintenance is confined only to the iddat period, else the legislature would have used the expression 'for the iddat period' instead of 'within the iddat period' as used in that section. On proper consideration of the entire scheme of the said Act, it is however difficult to accept the interpretation advanced by Mr. Habibullah. Section 4 of the said Act provides for maintenance of a divorced muslim woman by her relatives or Wakf Board after the iddat period where she has not remarried and is not able to maintain herself. The former husband of the woman does not come within the purview of said Section 4. Section 5 provides that the divorced woman and her former husband may in the manner provided therein opt for being governed by the provisions of Sections 125 to 128, Cr. P.C. where a divorced woman made an application under Sub-section (2) of Section 3 for order of maintenance etc. admissible under the said section of the Act 25 of 1986. Section 7 of the said Act provides that every application by a divorced woman under Section 125 or Section 127, Cr. P.C. pending before the Magistrate on the commencement of the said Act shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the said Act be disposed of by the learned Magistrate in accordance with the provisions of the said Act. Considering the scheme and the provisions of the said Act 25 of 1986 it is no doubt clear that the liability of the former husband to pay maintenance for the divorced woman is, however, limited to iddat period only. Claim of a divorced muslim woman for maintenance against her former husband beyond iddat period is not therefore tenable either under the said Act 25 of 1986 or under Section 125, Cr. P.C. except of course, where the parties opt under Section 5 or Section 7 of the said Act to be governed by the relevant provisions relating to maintenance as contained in the Code of Criminal Procedure.
5. The question that poses here however is whether a divorced muslim woman who obtained an order relating to maintenance under Section 125 or Section 127, Cr. P.C. before the coming into force of the Act 25 of 1986 loses the benefit of that order with the advent of the said Act. There seems to be sufficient force in the proposition that a claim or right of maintenance which has crystallised in the form of finality by an order of a competent Magistrate under Section 125 or Section 127, Cr. P.C. does not become non est with the advent of the Act 25 of 1986. Section 7 of the said Act of 1986 which makes transitional provisions rather makes the position clear. It says that every pending application by a divorced woman under Section 125 or Section 127, Cr. P.C. will be disposed of by the learned Magistrate in accordance with the provisions of the Act 25 of 1986. This again is subject to the provisions of Section 5 which means that even in such a pending application both parties may agree to be governed by the relevant provisions of the Criminal Procedure Code instead of the provisions of Act 25 of 1986. The fact that any pending application which might have been brought at the instance of the former husband of the divorced woman under Section 127, Cr. P.C is not included in the fold of Section 7 indicates that any such pending application under Section 127, Cr. P.C. was required to be disposed of in accordance with the provisions of Section 127. Again, the said Section 7 of the Act 25 of 1986 does not apply to any pending application or proceeding under Section 128, Cr. P.C. for the enforcement of an order of maintenance. This also makes it abundantly clear that the execution of the order of maintenance already passed under the relevant provisions of the Criminal Procedure Code would not be affected by the provisions of the Act 25 of 1986. These are, in my opinion, clear indications that the legislature did not intend to nullify an order of maintenance which was already passed before the advent of the Act 25 of 1986. A Division Bench of the Gauhati High Court after an elaborate discussion has held in Idris Ali v. Ramesha Khatun, AIR 1989 Gau 24 that an order of maintenance which has already been passed will not be invalidated by the advent of the Act 25 of 1986. The following observation of the Division Bench may be noted here with interest (at page 29) :--
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 new 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.
6. The above noted decision of the Gauhati High Court specifically decides that the order of maintenance which has already been granted in favour of a divorced woman cannot be cancelled and the same very much remains alive with its full force and vigour in spite of the subsequent coming into force of the Act 25 of 1986.
7. We have however a decision of this Court enunciating completely opposite proposition on this point. This decision of this Court is also a Division Bench decision reported in 1989 CCLR (Cal) 197 (Abdul Sattar v. Sahani Bibi). In delivering the judgment on behalf of the Division Bench Sumsuddin Ahmed, J. considered the non obstante clause in Section 3 of the Act 25 of 1986 and observed that 'the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment'. In that connection his Lordship further observed thus :--
Effect of non obstante clause is the implied repeal of the inconsistent provision appearing in any 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. The liability to pay maintenance under the provisions of Section 125, Cr. P.C. is a liability imposed by that particular provision of law. When such particular provision of law ceased to have effect any obligation imposed under aforesaid provision must also cease to have any effect, on the day when the Act came into force. This position makes it abundantly clear that in respect of a divorced woman if an order under Section 125, Cr. P.C. was passed that order will cease to have effect on the date of commencement of the Act.
8. The logic on which the said decision has been based is that with the advent of the Act 25 of 1986 the provisions of the Cr. P.C. which are inconsistent with the said new enactment suffered implied repeal and that being the position Section 125, Cr. P.C. ceased to have effect and consequently any obligation imposed under the aforesaid provisions must also have ceased to have any effect on the day when the new Act came into force and therefore in respect of a divorced woman if an order under Section 125, Cr. P.C. was passed that order ceased to have effect on the date of commencement of the new Act. In this connection, with great respect to the learned Judges, it appears to me that in spite of the finding that Section 125, Cr. P.C. stood impliedly repealed by the provisions of Act 25 of 1986, the effect of such repeal is yet required to be tested in the light of the provisions of Section 6 of the General Clauses Act, 1897. Before coming to a direct conclusion from the factum of repeal itself that any obligation or right incurred or accrued under the repealed provision ceased to have effect on the date of the commencement of the subsequent Act by which the relevant provisions of the earlier enactment stood repealed, Section 6 of the General Clauses Act deserves consideration. Section 6(c) of the General Clauses Act provides inter 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. Therefore the normal rule is that the repeal does not affect any right acquired or obligation incurred under the repealed enactment 'unless a different intention appears'. 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 or accrued right may however be defeated by repeal if such an intention ('different intention') appears from the repealing enactment. From the discussion already made it appears to me that the repealing enactment, namely, the Act 25 of 1986 does not contain any indication of any such 'different intention'. Rather, as I have already discussed, the intention as it appears from the scheme and the provisions of the Act 25 of 1986 is to leave unaffected the orders of maintenance which had already been passed under Section 125 or Section 127, Cr. P.C. before the commencement of the Act 25 of 1986. That being so, it appears to me that in view of Section 6(c) of the General Clauses Act a divorced muslim woman who had already obtained an order of maintenance under Section 125, Cr. P.C. or an order under Section 127, Cr. P.C. is still entitled to enforce and execute the same in spite of the coming into force of the Act 25 of 1986. Section 6(c) of the General Clauses Act was however neither placed before nor considered by the Division Bench of this Court in the case of Abdul Sattar v. Sahani Bibi, reported in 1989 C Cr LR (Cal) 197. We do not know what would have been the decision of the Division Bench of this Court had the said provision of Section 6(c) of the General Clauses Act or the said Division Bench decision of the Gauhati High Court been considered. But then in spite of non-consideration of the said decision and provision by the Division Bench of this Court the said decision of this Court is binding on me sitting singly nor am I free to choose the decision of the Division Bench of the Gauhati High Court discussed earlier in preference to the decision of the Division Bench of this Court. Therefore, following the decision of the Division Bench of this court, I am bound to hold that the order of maintenance which was granted in favour of the opposite party herein under Section 125, Cr. P.C. ceased to have effect on the commencement of the Act 25 of 1986 and therefore the execution case based on that order must be quashed.
9. So far as the question of maintenance payable for a child is concerned, it is, however, to be seen that the right of the child to have maintenance from his father under Section 125, Cr. P.C. has not been abrogated by the provisions of the Act 25 of 1986. Under Section 125, Cr. P.C. a minor child unable to maintain itself is entitled to maintenance from its father who in spite of having sufficient means neglects or refuses to maintain it. Section 3 of the Act 25 of 1986 in its Clause (b) speaks of a reasonable and fair provision and maintenance to be paid (for the Child) by the former husband of the mother of the child for a period of two years from the date of birth of the child and that too only where the divorced wife herself maintains the child born to/her before or after her divorce. It will be quite interesting to study the relevant portion of Section 3 of the Act 25 of 1986 which runs thus :-
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 iddat 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.
So, it is the divorced woman (and not the child) who is entitled to claim maintenance for the child. Under Sub-section (2) of Section 3 also an application has to be made to the Magistrate by the divorced woman or on her behalf by any one duly authorised by her for payment of such provision and maintenance by the former husband. Under Sub-section (3) of Section 3 the Magistrate is empowered to direct the former husband to pay reasonable and fair provision and maintenance "to the divorced woman" where he is satisfied that the "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."
10. While Section 4 of the Act of 1986 makes provision for paying maintenance to a divorced muslim woman by her relatives (not former husband) as mentioned in the said section or by the Wakf Board where the divorced woman has not remarried and is unable to maintain herself after the iddat period, the said Act does not make any provision for maintenance of the child by the former husband after two years from the date of birth of the child. Therefore, while the scheme of the Act itself, read as a whole, makes it clear that so far as a divorced muslim woman is concerned, her right to maintenance against her former husband is limited to iddat period except where the parties opt to be governed by the relevant provisions of the Code of Criminal Procedure in cases falling within the ambit of Section 5 or Section 7 of the Act, the said Act virtually does not deal with the right of maintenance of a child from its father and therefore in case of a child the provisions of Section 125, Cr. P.C. will be clearly applicable. It may also be noticed that the right of maintenance is enjoyed by a child under Section 125, Cr. P.C. as its own right but under Section 3 of the Act 25 of 1986 maintenance of a child for two years by its father is not a right of the child, but is a part of the right of the divorced woman where she herself maintains the child. Unlike under Section 125, Cr. P.C. the child has no right of itself to claim maintenance against its father under Section 3 of the Act 25 of 1986. Again, while the maintenance for child can be claimed under Section 125, Cr. P.C. from its father irrespective of the question as to who maintains the child, the claim of maintenance for child under Section 3 of the Act 25 of 1986 arises not to the child but to the mother of the child and that too where she herself maintains the child and not otherwise. It is, therefore, not difficult to see that the right to claim maintenance for a child under Section 3 of the Act 25 of 1986 is not only restricted to a period of two years from the date of the birth of the child but the same is available to the mother who maintains that child and that right is available to her as a part of her own right, but she cannot claim this right on behalf of her child where the child is not maintained by her nor can the child or anybody else other than the mother of the child claims maintenance for the child under the said Section 3 of the Act 25 of 1986. Therefore, it is clear that the right of the child to claim maintenance under Section 125, Cr. P.C. either by itself or through its mother acting, on its behalf remains intact in spite of the right of the mother under Section 3 of the Act 25 of 1986 to claim maintenance for the child for a period of two years from her former husband where she herself maintains the child.
11. In the present case, however, the child was born in April, 1969 and therefore attained majority in April, 1987 on completion of 18 years of age. That being so, even under Section 125, Cr. P.C. the child after attaining majority is not entitled to maintenance from its father. The right of the child to realise maintenance by execution of the maintenance order passed under Section 125, Cr. P.C. is again subject to the law of limitation as provided in the said section. In the present case, the execution proceeding was started on 9th March, 1987. Therefore the child who attained majority in April, 1987 could realise maintenance by execution of the order of maintenance under Section 125, Cr. P.C. for a period of one year preceding the date of institution of execution proceeding. The maintenance granted to the child was only at the rate of Rs. 50/- per month. At that rate the arrear maintenance recoverable for the child in the impugned execution proceeding would come only to about Rs. 600/- (50 x 12). The deposits made by the petitioner in the execution proceeding as noted earlier cover the said amount of arrear maintenance also for the child. Therefore, nothing remains further for execution `spect of the maintenance order relating to the child. The entire execution proceeding is, therefore, no more tenable for reasons discussed above. In the result the impugned execution proceeding is liable to be quashed. Since however the petitioner deposited arrear maintenance for the wife on the basis of his own undertaking before the learned Magistrate he cannot lay any claim for refund of any amount from the opposite party on the ground that the same was not otherwise recoverable under Section 125, Cr. P.C. by reason of limitation or by reason of the advent of the Act 25 of 1986.
12. The revisional application stands allowed and the impugned proceeding quashed.