Andhra HC (Pre-Telangana)
P. Karrem Saheb vs Raheemunnisa And Anr. on 17 December, 1996
Equivalent citations: 1997(3)ALD409, 1997(1)ALD(CRI)398, 1997(1)ALT(CRI)390, 1997CRILJ3694
ORDER
1. This revision is directed against the order dated 3-11-1995 passed by the District and Sessions Judge, Chittoor in Crl, Revision Petition No. 69/93 reversing the order dated 11-8-1993 passed in Crl. M.P. No. 347/90 in M.C. No. 4/84 on the file of the J.F.C.M., Palamaner.
2. The facts giving rise for this criminal revision case are as follows :
The petitioner herein is the husband of the respondent Rahim Unnisa. For the sake of convenience, they are being referred as husband and wife in this order. They have got children out of the wed-lock. Due to the estrangement between the parties, the wife filed M.C. No. 4/84 under Section 125, Cr.P.C. in the Court of J.F.C.M., Palamaner for maintenance and that the petition was allowed on 3-3-1986, directing the husband to pay a sum of Rs. 300/- per month to the wife towards maintenance of herself and her children. In the revision by the husband, Addl. District and Sessions Judge, Chittoor modified that order and granted maintenance at the rate of Rs. 200/- per month. Later, on 20-4-1990 the husband filed C.R.M.P. No. 347/90 under Section 127, Cr.P.C. to set aside the maintenance order dated 3-3-1986 passed in M.C. No. 4/84 contending, inter alia, that he divorced his wife on 11-2-1989 according to Muslim Customs and Principles, that the same was accepted by the District Government Kazi, Chittoor and that under Section 3(1)(a) of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called 'Act') a divorced woman's right for maintenance is restricted only to the period of 'Iddat' and the husband is not liable to provide maintenance after the period of 'Iddat' and that he had deposited the entire 'Mehar' amount and the maintenance amount for the 'Iddat' period with the District Government Kazi, Chittoor and that he is not liable to pay any further maintenance amount as per order in M.C. No. 4/84. The wife resisted that petition by filing a counter disputing the allegation of the husband that he divorced her and that he deposited amounts of 'Mehar' and for the period of 'Iddat' and that the Act came into force after 3-3-1986 i.e., the date of maintenance order passed in M.C. No. 4/84 and the provisions of Section 3(1)(a) of the Act are not applicable to the case and that she is not a divorced wife and that their marriage is still subsisting and that she is entitled to execute the maintenance order.
3. During the enquiry, PWs. 1 to 4 were examined and Exs. P-1 to P-7 were marked on behalf of the husband and DW-1 was examined on behalf of the wife. On a consideration of the oral and documentary evidence placed before him, the learned Magistrate by his order dated 6-12-1990 dismissed the petition on the ground that the husband failed to prove that he divorced his wife and that the Act of 1986 has not taken away the maintenance awarded in favour of the wife. Aggrieved of that order, the husband preferred Crl. Revision Petition 6/91 and the learned Addl. Dist. and Sessions Judge, Chittoor allowed that revision petition and set aside the order passed by the learned Magistrate in Crl.M.P. No. 347/90. Assailing that order of the learned Addl. Dist. and Sessions Judge, Chittoor, the wife filed Crl. Case No. 426/91 and Crl. Revision Case No. 423/91 and the Hon'ble High Court by its order dated 10-12-1991 allowed the revision case and the order of the learned Addl. Dist. and Sessions Judge was set aside and the matter was remanded to the Magistrate Court with a direction to reappreciate the evidence regarding the factum of divorce and to give a fresh finding as to "whether there was a valid divorce on 11-2-1989 or not". This Court further directed the Magistrate that if he comes to a conclusion that there is a valid divorce, then he should record the finding to the effect that Maintenance is not payable beyond the 'Iddat' period commencing from 11-2-1989. After remand, the counsel for the husband filed Crl.M.P. No. 947/92 to recall PW-2 i.e., the Government Kazi, Chittoor for further examination and that petition was allowed as the counsel for the wife reported no objection. Hence, PW-2 was recalled on 26-11-1992 and he was further examined. On reappreciation of the evidence on record, the learned Magistrate by his order dated 11-8-1993 held that the husband has given divorce to his wife on 11-2-1989 in the presence of the District Kazi. Chittoor (PW-2) and 2 other elders PWs. 3 and 4, and that Divorce Certificate Ex. P-5 was also issued by PW-2. The learned Magistrate further held that the wife is not entitled to claim maintenance beyond the period of 'Iddat' in view of the Act 25 of 1986 and allowed the petition. Aggrieved of that order, the wife preferred Crl. Revision Petition No. 69/93 and the learned District and Sessions Judge by his order dated 3-11-1995 reversed the finding of the learned Magistrate and held that the husband failed to prove that he effected divorce to his wife and consequently, allowed the revision and set aside the order of the trial Court dated 11-8-1993 passed in Crl.M.P. No. 347/90 in M.C. No. 4/84. Assailing that order of the learned District and Sessions Judge, passed in Crl.R.P. No. 69/93 the husband has come up with this revision case.
4. Heard the learned counsel for the petitioner and the respondent and perused the impugned order and the lower Court record.
5. The learned counsel for the petitioner submits that the trial Court on appreciation of oral and documentary evidence placed before him and an application of correct legal provisions, drew the correct conclusions that the husband has proved, beyond doubt, that there was a valid divorce on 11-2-1989 and that the wife is not entitled to claim maintenance beyond the 'Iddat' period under the provisions of Act, 25 of 1986. He further contends that the learned District Judge reversed the said finding on account of misreading of the evidence and also by not appreciating the evidence in right perspective and as such, the impugned order is liable to be set aside. The learned counsel for the respondent-wife, on the other hand, contends that the evidence on record does not conclusively establish the factum of divorce between the parties and as such, this criminal revision case is liable to be dismissed.
6. The main question that falls for consideration is whether the petitioner-husband has established the factum of divorce which he is alleged to have effected on 11-2-1989 and if so, whether the respondent-wife is not entitled to claim maintenance under order in M.C. No. 4/84 in view of the provisions under Act 25 of 1986 ?
7. Before adverting to the decided cases, cited across the Bar and considering the evidence on record, I may usefully refer to the principles of Mohammadan Law governing 'divorce' by a Muslim husband. Chapter XVI in the Book entitled "Mulla's Principles of Mohammadan Law" edited by Hidayathulla, the Former Chief Justice of India, relates to the provisions relating to divorce and divorce by husband.
The relevant provisions read as follows :
"307. Different forms of divorce :- The contract of marriage under the Mohomedan law may be dissolved in any one of following ways : (1) by the husband at his will, without the intervention of a Court; (2) by mutual consent of the husband and wife, without the intervention to a Court; (3) by a judicial decree at the suit of the husband or wife. The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage (S. 314), but she may, in some cases, obtain a divorce by judicial decree (Ss. 328-334).
When the divorce proceeds from the husband, it is called 'talak' (Ss. 308-315), when it is effected by mutual consent, it is called 'khula' (S. 319) or 'mubarat' (S. 320) according to the terms of the contract between the parties.
308. Divorce by talak :- Any Mohomedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.
309. Contigent Divorce :- A divorce may be pronounced so as to take effect on the happening of a future event. In an Allahabad case the husband agreed to pay his wife maintenance within a specified time and in default the writing to operate as a divorce. It was held that on the husband's default the writing took effect as a valid divorce.
310. Talak may be oral or in writing :- A talak may be effected (1) orally (by spoken words) or (2) by a written document called a 'talaknama.' (1) Oral Talak :- No particular form of words is prescribed for effecting a talak. If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous(kinayat), the intention must be proved. It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her. In a Calcutta case the husband merely pronounced the word "talak" before a family counsel and this was held to be invalid as the wife was not named. This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife's absence, as the wife was named. The Madras High Court has also held that the words should refer to the wife. The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is not necessary that it should come to her knowledge; and her alimony may continue till she is informed of the divorce. As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Art. 104 for the wife's suit for deferred dower ran from the time when the divorce comes to her notice, under the Act of 1908.
(2) Talak in writing :- a talaknama may only be the record of the fact of an oral talak; or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the kazi or of the wife's father or of other witnesses. The deed is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is not so superscribed and addressed it is said to be in unusual form. If it is in customary form it is called "manifest" provided that it can be easily read and comprehended. If the deed is in customary form and manifest the intention to divorce is presumed. Otherwise the intention to divorce must be proved. In the undernoted case the talaknamas were held to be customary and manifest and so operative without proof of intention. On the other hand if the deed is in the form of a declaration not addressed to the wife or any other person, it is not in customary form and is not effective if there was no intention to divorce. If the talaknama is customary and manifest it takes effect immediately (S. 313) even though it has not been brought to the knowledge of the wife. In a Bombay case the talaknama was communicated to the wife within a reasonable time and the Court observed that this was sufficient. This, however, was not a finding that communication within a reasonable time is necessary and the talaknama operated from the date of execution. But as in the case of an oral talak, communication may be necessary for certain purposes connected with dower, maintenance and her right to pledge her husband's credit for means of subsistence. If an acknowledgement of divorce is made by the husband, the divorce will be held to take effect at least from the date upon which the acknowledgement is made.
311. Different modes of talak :- A talak may be effected in any of the following ways :-
(1) Talak ahsan :- This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat (2.257). (2) Talak hasan :- This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs.
(3) Talak-ul-bidaat or talak-i-badai. - This consists of -
(i) three pronouncements made during a single tuhr either in one sentence e.g. "I divorce thee, I divorce thee, I divorce thee", or. (ii) a single pronouncement made during a tuhr clearly indicating intention irrevocably to dissolve the marriage. e.g., "I divorce thee irrevocably".
312. When talak becomes irrevocable :- (1) A talak in the 'ahsan' mode (S. 311(1)) becomes irrevocable and complete on the expiration of the period of iddat (S. 257).
(2) a talak in the 'hasan' mode (S. 311(2)) becomes irrevocable and complete on the third pronouncement, irrespective of the iddat.
(3) A talak in the 'badai' mode (S. 311(3)) becomes irrevocable immediately it is pronounced irrespective of the iddat. As the talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevoable talak.
313. When talak in writing becomes irreovable :- In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce 'talak-i-bain, and takes effect immediately on its execution."
From the above, it is clear that a divorce which proceeds from a Muslim husband is called "talak" and it may be effected orally or by written document called "talaknama" and no particular form of words is prescribed for effecting a "talak" be oral or written. Where the words are express or well understood as implied divorce, no further proof of the husband's intention to divorce is needed or required. But, however, where the words are ambiguous, the intention of the husband to divorce his wife must be proved. Such intention can be proved or established either by oral or documentary evidence. It is also well established that there is no need to pronounce the "talak" in the presence of the wife alone or even addressed to her only. "Talak" may be pronounced naming the wife either before a family council or in the presence of two elders of the community. However, the announcement must clearly indicate the intention of the husband to divorce his wife. As seen from the above, there are three modes of talaks and in all the three modes of talak, there is one common ingredient or feature. The pronouncement of divorce, be once or thrice depending on the mode of talak, must invariably made during tuhr (i.e. the period between menstruasation). No pronouncement of divorce by a muslim husband will be valid when made during the mensturation period of the wife. The Muslim wife can always contest the validity of pronouncement of divorce by her husband on the ground that the pronouncement of divorce was not made during Tuhr but was made during the period of menstruation. Talak becomes irrevocable and complete either on the expiration of 'iddat' or immediately after the pronouncement depending on the mode of talak. The husband may revoke his pronouncement of divorcing his wife before the talak becomes irrevocable. The consent of the wife for making talak valid or irrevocable is not essential. Thus the husband is competent to divorce his wife in any one of the forms or modes referred to above by clearly expressing his intention to divorce his wife. There is no obligation on the part of the husband to give reasons for his intention to divorce his wife. Where the talak is in writing, it may either be in the customary form or in an unusual form and the talaknama which is the record of fact of an oral talak or a deed by which the divorce is effected, may be executed in the presence of the kazi or the father of the wife or any elders or witnesses. Where the talaknama is properly superscribed and addressed so as to indicate the name of the writer and the person addressed, it is said to be in the customary form, otherwise, in unusual form. The intention of the talaknama in the customary form must be presumed, whereas, in the unusual form, the intention to divorce must be proved. Where the talaknama is in the form of declaration not addressed to the wife or to any other person, it must be considered to be not in the customary form and it is also not effective if there was no intention to divorce. In the case of customary talaknama, it takes effect immediately even though it was not brought to the knowledge of the wife. But, in the case of a declaration, where the talaknama is not addressed to the wife or to a particular person, the intention of the husband to divorce his wife must be express in clear and unambiguous words, and it must be established subsequently.
8. The learned Counsel for the husband submits that a Mohammadan husband can exhibit his intention to divorce his wife by making a specific statement or averment in a petition or written statement or counter filed by him in a legal proceedings between himself and his wife and such a declaration amounts to a valid pronouncement of divorce at least from the date of filing of the petition, written statement or counter. The learned Counsel also relied on the Division Bench decision of this Court in Syed Jamaluddin v. Valian Bee, (1975) 2 APLJ (HC) 20 : (1975 Cri LJ 1884) to substantitate that proposition. In para 21 their Lordships observed thus :
"For all the reasons stated, we have no hesitation to hold that notwithstanding the failure of the Mohammadan husband, to prove his allegation that he had divorced his wife some years or months ago or the statement made by him to the effect that he divorced her earlier being found to be false nevertheless it would operate as an acknowledgment of divorce as from the date on which clear and unambiguous statement was made in a notice issued by him to his wife or a pleading or an affidavit filed by him in a Court proceeding to which his wife was party. The husband need not prove the form of talak adopted by him. Such declaration irrespective form of talak, would be complete, irrevocable and effective from the date of filing of the pleading or affidavit or the communication or the notice and he would not be liable to maintain her any longer except for the period of Iddat."
Their Lordships referred to, with approval, an earlier decision of this Court in Mohammad Ali v. Fareedunnisa, , wherein it is observed that the statement made by a Mohammadan husband in the reply notice issued by him to his wife stating that she had already been divorced was found to operate as declaration of divorce from its date.
9. In the instant case, the husband is relying on the oral testimony of P.Ws 2, 3 and 4 besides himself as PW-1 and the documents Exs. P1 to P-7 to prove divorce. The husband examined as PW-1 stated in his examination-in-chief that he gave an application before the District Government Kazi, Chittoor intimating his intention to divorce his wife and the District Government Kazi, Chittoor sent a notice to the respondent informing her to appear before the office on 18-12-1988 for hearing and the respondent refused to take the notice and the District Government Kazi passed an order of divorce on 11-2-1989. He further stated that as per the orders of the Kazi, he deposited the Mehr amount and Iddat amounting to Rs. 600/- in Kazi office. It is suggested to him in his cross-examination that he did not give divorce to the respondent on 11-2-1989, but the said suggestion has been denied by him. PW-2 is Sri Shah Mohammad Khamaluah, the Kazi of Chittoor District.
In his examination-in-chief, PW-2 stated that on 17-8-88 the husband filed a petition (Ex. P-1) for divorce to his wife and the same was numbered as 21/88, that he issued a notice to the wife and the office copy of is Ex. P-2, but it was returned. Ex. P-3 is the returned registered cover addressed to the wife and that on 11-2-89 he passed a divorce order (Ex. P-4) and issued the divorce certificate (Ex. P-5) and that after passing the divorce order, he issued a notice to the respondent under Ex. P-6 intimating the fact of divorce and the respondent refused to receive the same and Ex. P-7 is the returned registered cover. PW-2 further stated that as per the Islam procedure he passed the divorce order. It is suggested to him in his cross-examination that he did not pass the orders of divorce as per Islamic Law and that divorce was not effected but he denied the said suggestion. PW-2, after remand from this Court, was recalled and further examined. In his further chief examination, PW-2 has categorically stated that on 11-2-1989 the husband pronounced talak three times in the presence of himself and P.Ws. 3 and 4 and that P.Ws. 3 and 4 also signed in the talak proceedings. He further stated that as per Mohammadan Law, the wife need not be present at the time when the husband pronounces talak. In his cross-examination, PW-2 stated that Ex. P-4 the certificate of talak does not contain that the husband pronounced talak thrice. He also denied the suggestion that the wife should also be present at the time of pronouncing talak by the husband. PW-3 S. Mahiddin Saheb a resident of Chittoor deposed that the petitioner gave divorce to the respondent on 11-2-89 and Kazi prepared the Talaknama Ex. P-4 and he attested it along with Sarvar Saheb. He denied the suggestion made to him that the husband did not state Talak thrice in his presence. PW-4 Sanwar Saheb, a resident of Chittoor deposed that the petitioner signed in Ex. P-4 which was written in the office of the Kazi, Chittoor and that himself and PW-3 attested it and he further stated that the petitioner uttered the word Talak thrice in his presence.
10. The trial Court appreciated the evidence of PWs. 1 to 4 and the documentary evidence on record in right perspective and he has given cogent and convincing reasons for accepting the testimony of PWs. 1 to 4 and rightly held that the husband has established the factum of divorce. The learned District Judge observing that there are minor contradictions in the evidence of PWs. 3 and 4 with regard to the time of the execution of Ex. P-4 and on other irrelevant considerations, reversed the said finding given by the trial Court. There is no basis for the observation of the District Judge that PW-4 is an interested witness. It is true that PWs. 1 and 3 did not specifically say in their evidence that the husband uttered the word "Talak" thrice before the execution of Talaknama Ex. P-4. But, as earlier stated, a suggestion was made to PW-3 in his cross-examination that the petitioner did not utter talak thrice, but he denied the said suggestion. PW-1 also categorically stated that with the intention of giving divorce to his wife, he submitted the application Ex. P-1 to the District Kazi, PW-2. PW-2 has categorically stated that the petitioner uttered the word "talak" thrice with the intention of divorcing his wife and thereafter, he prepared Talaknama Ex. P-4. It is true that there are no recitals to the effect that the petitioner uttered the word "talak" thrice in Ex. P-4. But, overall reading of Ex. P-4 goes to show that it was executed as a deed of divorce between the petitioner and the respondent. A perusal of Ex. P-4 gives the indication that the petitioner divorced his wife with effect from 11-2-89 and their relationship as husband and wife severed. As seen from Exs. P2, P-6 and P-7, PW-2 also made attempts to inform the respondent by issuing registered notices both before and after effecting the divorce between the parties. But, she refused to receive the registered letters. Moreover, as earlier stated, under Mohammadan Law, the presence of the wife is not necessary for effecting the divorce by a Mohammadan husband by pronouncing Taluk.
11. As seen from Exs. P-4 and P-5, the Talaknama has been addressed to the respondent herein and in unambiguous terms, the petitioner expressed his intention to divorce his wife and effected divorce with effect from 11-2-89. It has been drafted by PW-2 and attested by two elders PWs. 3 and 4. It amounts to a valid Talaknama. The learned Magistrate applying the correct principles of law, held that the petitioner has established the factum of divorce. The learned District Judge in reversing the said finding, committed error of law and it is a perverse order and as such, it is liable to be set aside. I endorse the finding of the learned Magistrate that the petitioner has established the factum of divorce with his wife with effect from 11-2-1989.
12. There is a categorical statement made by the husband in his petition C.R.M.P. No. 347/90 that he has given divorce to the respondent before the District Kazi, Chittoor on 11-2-1989 according to the Muslims customs and the same was accepted by the Kazi. As per the ratio in the decision of the Division Bench of this Court in Syed Jamaluddin v. Valian Bee, 1975 Cri LJ 1884 (quoted supra), this statement made by the petitioner must be deemed to have been known to the respondent as she is a party to the proceeding in which such declaration has been made and this amounts to valid divorce from the date on which the said declaration was made in the petition and the respondent ceases to be the wife of the petitioner at least from the date of filing of that petition in view of the declaration of the husband that he divorced her. Thus the evidence on record conclusively establishes that there is a valid divorce between the petitioner and the respondent.
13. This brings us to consider the next aspect whether the respondent-wife is entitled to claim maintenance as per order in M.C. No. 4/84, in view of the divorce and the provisions of Act 25 of 1986.
Admittedly, the order in M.C. No. 4/84 granting maintenance to the respondent-wife. u/S. 125, Cr.P.C. was passed on 3-3-1986. Act 25 of 1986 came into force with effect from 3-7-1986. The divorce in this case as proved by the petitioner-husband took place on 11-2-1989. The learned Counsel for the petitioner-husband submits that after enactment of Act 25 of 1986, the right of a divorced Muslim woman to claim maintenance under Section 125, Cr.P.C. is obliterated except for the period of 'Iddat' and as such, the respondent-wife herein is not entitled to claim maintenance under the order M.C. No. 4/84 subsequent to enactment of Act 25 of 1986 and after the divorce between the parties. The learned Counsel for the petitioner also relied on the decision in Usman Khan Bahamani v. Fatim Unnisa Begum, (FB) and the decision in Nazir Ahmad Ansari v. Latif Bee, 1996 Cri LJ 1548 (Andh Pra). The learned Counsel for the respondent-wife, on the other hand, vehemently contends that Act 25 of 1986 is only prospective in operation and it does not affect the orders granting maintenance to a Muslim wife prior to the advent of Act 25 of 1986. He relied on the decision in Shaik Raj Mohmadd v. Shaik Amina Bee, 1993 (1) Law Summary 285 : (1993 Cri LJ 3690) (Andh Pra).
14. Act 25 of 86 is a special enactment to protect the rights of Muslim women who have been divorced or who have obtained divorce from their husbands. A reading of the provisions of this Act clearly shows that this particular enactment has an overriding effect of any other law for the time being in force. Section 3(1) begins with the words 'notwithstanding anything contained in any other law for the time being in force'. Under Section 3 of the Act, a Muslim divorced woman is entitled to approach the Court and seek the relief for a reasonable and fair provision of maintenance for the period of 'Iddat' from her former husband. She is also entitled to claim maintenance for 2 years for her children if the children are being brought up by her. She is also entitled to Mehr or dower amount agreed to be paid to her at the time of her marriage and also for return of all the properties given to her before or at the time of marriage or after the marriage of her relatives, friends or husband or relatives of the husband or his friends. Sub-section (2) of Section 3 contemplates the procedure by which the divorced woman can obtain relief under this Act. Section 4 deals with the order for payment of maintenance under the Act and the various persons who would be liable to pay the maintenance to a divorced Muslim woman. Section 5 provides an option for a divorced woman to be governed by the provisions of Secs. 125 and 126 of Criminal Procedure Code in spite of the enactment of Act 25 of 1986. In the case on hand, it is an admitted fact that no such option was given by the respondent-wife.
I am of the view that the Full Bench decision of this Court in Usman Khan Bahamani v. Fatim Unnisa Begum (1990 Cri LJ 1364) (referred to above) squarely covers the point raised in this case. The Full Bench observed thus :
"The very concept of liability of the husband is limited for and during the period of Iddat. The liability if any arriving for payment of maintenance after the Iddat period to the divorced woman if she is unable (to) maintain herself is cast upon the relatives or the Wakf Board under Section 4 of the Act ......... A combined and harmonious reading of Ss. 3 to 7 of the Act 25 of 1986 would clearly demonstrate general object of the legislation is to bring the law of maintenance payable to the wife in consonance with the principles of Mahammadan Law. Therefore, the provisions of Ss. 125 to 128 of the Criminal Procedure Code will have no application to the Act 25/86 except in the case of option exercised by the parties under Section 5 of the Act to any such claim of maintenance made by the wife under Section 125 of Cr.P.C. ................ Therefore, in view of the foregoing, it is held that the divorced Muslim woman cannot claim maintenance under Section 125 of Cr.P.C. from her former husband after passing of the Act 25/86."
The learned Judges of the Full Bench were considering a case where Muslim woman was divorced prior to the coming into force of Act 25/86 and in whose favour an order of maintenance has been passed and it has become final. They observed thus :
"............... If such an order is held to be executable, then it will amount to contravention of intention of the Legislature and will amount to frustrate the very object of Act 25/86 for which it has been enacted."
The ratio of this decision is very clear that Act 25/86 is retrospective in operation. In nazir Ahmad Ansari v. Latif Bee, 1996 Cri LJ 1548 (referred to above), my learned brother Justice V. Rajagopala Reddy also took the same view that even in cases where the orders of maintenance have been passed and become final are inexecutable on the advent of Act 25/86.
I respectfully agree with his view.
In Shaik Raj Mohammad v. Smt. Shaik Amina Bee, 1993 Cri LJ 3690 (referred above) relied on by the learned Counsel for the respondent-wife Justice Subhashan Reddy held that Act 25/86 is only prospective in operation and does not affect or invalidate the orders of maintenance passes prior to the Act 25/86 and become final. It will be seen from a reading of this decision that the learned Judge though noticed the decision of the Full Bench (referred to above) has not considered its ratio except stating that "it has no bearing or the facts" of that case. The learned Judges of the Full Bench upon an elaborate consideration of the provisions of Act 25/86 in all its legal aspects held that even in cases where the orders of maintenance are passed and become final are inexecutable on the advent of Act 25/86. Therefore, I am unable to agree with this view of the learned single Judge that Act 25/1986 is prospective in operation.
15. In the instant case the husband proved beyond doubt that he gave divorce to his wife, the respondent herein, in the presence of Khaji and two elders on 11-2-1989. Therefore, the order of maintenance in M.C. No. 4/84 was passed long prior to the enactment of Act 25/86, and has become final. The respondent-wife is not entitled to claim maintenance under the said maintenance order beyond the period of 'Iddat' as per Section 3(1)(a) of Act 25/86. In other words, she is not entitled to claim maintenance beyond 11-5-1989. The learned Magistrate also rightly held that the orders passed in M.C. No. 4/84 have become ineffective and inoperative except for the period of 'Iddat' after the commencement of Act 25/86. The order of the learned Magistrate is hereby confirmed.
In the result, the revision case is allowed. The order of the learned District Judge, Chittoor in C.R.P. No. 69/93 dated 3-11-1995 is set aside. The order of the learned Judicial First Class Magistrate, Palmaner in Crl.M.P. No. 347/90 in M.C. No. 4/84, dated 11-8-1993 is confirmed.
Parties are directed to bear their own costs.
16. Revision allowed.