Patna High Court
Shahnaz Bano Alias Shahnaz Khan vs Perves Ahmad Khan And Ors. on 19 May, 2000
Equivalent citations: AIR2000PAT326, AIR 2000 PATNA 326, (2001) MATLR 43, (2000) 4 PAT LJR 691, (2000) 3 BLJ 542
ORDER Indu Prabha Singh, J.
1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 29-1-1997 passed in Case No. 2/96/Tr. No. 857/97 by Shri A. K. Thakur, Judicial Magistrate, Ist Class, Danapur dismissing the claim of the petitioner filed under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act; 1986 (hereinafter called the 'Act') for her dower debt as per the claim for maintenance for herself and her child.
2. The case of the petitioner is that she is a divorced wife of opposite party No. 1. She had filed the aforesaid petition for a direction to opposite party No. 1 to pay the amount of her dower debt and maintenance to herself and also for a direction to the State Bank of India, Hazaribag Branch (opposite party No. 2) to allow the petitioner to take out her ornaments from the locker No. 128 held jointly by the petitioner and opposite party No, 1. The petitioner was married to the opposite party No. 1 on 17-6-1973 according to the customs and rites under Mohammadan Law applicable to the Sunny Sect. At the time of Nikah the dower debt was fixed at Rs. l.00,000/-. Soon after her marriage the petitioner found opposite party No. 1 not faithful to her and not prepared to discharge his matrimonial obligations. In the meantime, she gave birth to a. son in the year 1974, Before this she was sent to her Maikey where she was compelled to remain for 9 long years. All of sudden the petitioner received a letter from opposite party No. 1 in August, 1983 stating therein that he had divorced her. This letter was dated 1-7-1983. Apart from the dower debt of Rs. 1,00,000/- fixed at the time of the marriage the petitioner was given ornaments worth more than Rs. l,00,000/- by her parents at the time of her marriage which were now kept in the locker No. 128 of State Bank of India, Hazaribag Branch. This locker was in the joint name of the petitioner and opposite party No. 1 and its keys were kept by opposite party No. 1. On divorce the petitioner was entitled for reasonable provisions for her lifetime maintenance which should have been paid to her in one lump sum within three months of the Divorce. In spite of repeated request opposite party No. 1 did not fulfil any of his, legal obligations the petitioner sent a pleader's notice to opposite party No. 1 which was replied by a letter dated 21-9-1995 in which opposite party No. 1 made wild allegations against the petitioner. Opposite party No. 1 is holding a respectable post and drawing the salary of about Rs. 10,000/- per month, The petitioner preferred the claim under the relevant provisions of the Act to which opposite party No. 1 filed a rejoinder and contested her claim on the ground that the same was barred by limitation in view of S. 292 of the Mullas Mohammadan Law inasmuch as the divorce had already taken place in 1983. The learned Court below without considering the merits of the claim of the petitioner dismissed her case by the impugned order only on the point of limitation as prescribed under Section 292 of the Mohammadan Law.
3. The petitioner has contended that this order of the learned Court below is bad in law. The [earned Court below should not have dismissed her claim on the ground that the same was barred under the provisions of law as contained in Section 292 of the Mullas Mohammadan Law. The said letter does not apply to a petition filed under Sections 3 and 4 of the Act since the same cannot be treated to be a suit to be disposed of by the civil Court. Under the provisions of the Act the petitioner is required to be disposed of by a Magistrate and, therefore, on this ground also the impugned order is bad on the point of law. On these grounds amongst others it has been contended that the impugned order be quashed and the case be remanded back to the Court below for its disposal in accordance with law.
4. In the show cause petition filed by opposite party No. 1 it has been contended that the Act in question came into force on 9-5-1986 whereas the present case relates to a divorce dated on 1-7-1983 as such the law prevailing in the year 1983 will be applicable. In the said order the provisions of Sections 50 and 292 of the Mohammadan Law were made applicable according to which the limitation to file a suit for dower by a Muslim wife was only three years from the date of divorce. Since the present suit has been filed in the year 1997 it is certainly barred by limitation according to the Muslim Law. It has also been pointed out that the petitioner had filed a petition under Section 125 of the Code for her maintenance in the Court of Sub-Divisionai Judicial Magistrate, Sadar Hazaribag on 28-3-1987 (Tr. No. 1206/87) in which she had claimed for her maintenance. This petition was dismissed for default by the order dated 8-12-1987. After the dissolution of the marriage opposite parly No. 1 had paid Rs. 18.000/- to the petitioner on 2-5-1983 in cash and one golden necklace worth Rs. 6800/- in full and final settlement towards her dower debt since the petitioner had demanded prompt dower from opposite party No. 1. She had granted a written receipt for the same in her own hand writing as will appear from Annexure-B to this show cause petition. The petitioner is a working lady as Supervisor in Education Department and as such she is not entitled to any maintenance. She is also not entitled to take out her ornaments from locker No. 128 of the State Bank of India, Hazaribag Branch. At the time of the marriage the dower debt of the petitioner was fixed only at Rs. 25.000/-. The petitioner was having illicit relationship with others and was not willing to keep the opposite party No. 1 with her. On these grounds amongst others it was contended that this petition be dismissed.
5. Opposite party No. 2 had also filed a counter-affidavit in which the State Bank of India had contended that the petitioner was not entitled to the reliefs prayed for to take out the ornaments kept in the joint name of the petitioner and her husband.
6. The petitioner through her father has filed a reply to the show cause filed on behalf of opposite party No. 1, In this reply the petitioner has contended that even if it be accepted for the sake or argument that opposite party No. 1 had divorced the petitioner on 1-7-1983 much before the expiry of the period of three years as prescribed by Section 292 of the Mohammadan Law, the new Act came into force on 19-5-1986 which being special enactment was to prevail over provisions the of S. 292 of Mohammadan Law. The amount of dower was fixed at Rs. l,00,000/- with consent of the parties and no part thereof was ever paid to the petitioner whoever received any amounl in cash or the golden necklace. It is wrong to say that the dower debt was fixed at Rs. 25.000/-. No limitation has been prescribed under Section 3(c) of the said Act. On these grounds amongst others it has been contended that show cause filed on behalf of the opposite party No. 1 be rejected.
7. I have heard the parties in detail and have also perused the law on the subject. So far as the impugned order is concerned the learned Magistrate has stated in his order dated 29-1-1997 (impugned order) that this proceeding was challenged mainly on the ground of limitation as per the principles of Mohammadan Law (Mulla) 15th Edition page 247 according to which the period of limitation was fixed as three years. From the impugned order it further appears that the learned Magistrate had noticed that the divorce had taken place in the year 1983 and as such this petition filed on 27-8-1996 was clearly hit by the law of limitation as prescribed under Section 292 of the Mohammadan Law. On this ground alone he dismissed the Misc. Case No. 2/96 holding that the claim of the petitioner was time barred. He has not entered into the merits of the claim of the petitioner while passing the impugned order.
8. In this connection I will firstly refer to S. 292 of the Mullas Mohammadan Law (17th Edition) published in the year 1972 as per this section the period of limitation for a suit to recover "prompt dower" is three years from the date when the dower is demanded and refused. It further provides that the period of limitation for a suit to recover deferred dower is three years from the date when the marriage is dissolved by death or divorce. Relying on this provision of law in learned Court below has passed the impugned order holding that the claim of the petitioner is barred by limitation.
9. Before taking into consideration the various submissions made on behalf of the parties certain dales have to be taken into consideration. According to the case of the petitioner she was married to opposite party No. 1 on 17-6-1973. This fact has not been disputed. The further case of the petitioner is that the opposite party had sent a letter dated 1-7-1983 to her informing her that he had divorced her. This letter was received by the petitioner in the month of August, 1983. The next date to be noted in this connection is that it was on 19-5-1986 that the Muslim Women (Protection of Right on Divorce) Act, 1986 came into force. The said Act had come into force before the expiry of period of three years as prescribed under Section 292 of the Mullas Mohammadan Law. In other words even according to Section 292 the petitioner could not have preferred her claim on or before 9-5-1986 the date on which the said Act came into force. According to her she had received the letter of divorce in August, 1983 and the period of three years as Prescribed was still to be expired on 9-5-1986. Under the aforesaid circumstances 1 would like to examine the point of law on the subject.
10. In this connection a reference may be made to certain provisions of the said Act. It's preamble shows that this Act was passed to protect the rights of Muslim Women who have been divorced by her husband and to provide for the matter connected there with or incidental thereto. From this it would appear that this was brought into existence to protect the rights of Muslim women who have been divorced by their husbands. Another thing to be noted in this connection is that Section 3 of the said Act begins with the following "Notwithstanding anything contained in any law for the lime being in force." Its clause as contained in Section 3 is known as non-obstante clause. What is the legal effect of any such non-obstante clause has to be taken into consideration. In this connection reference may be made to the case of Lallu Prasad v. The State of Bihar, AIR 1976 Patna 137. In this case it has been held that the purpose of no obstante clause is that its provisions shall prevail over any other provision of law and that any other provision of any other law shall not be of any consequence. In the case of Sarwan Singh v. Kasturi Lal AIR 1977 SC 265 it has been held that when two or more law operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, the conflict has to be decided with reference to the object and purpose of the laws under consideration and where the newly introduced provisions is made nugatory on account of the provisions of the corresponding Act, the newly introduced Act is to prevail. Late enactment must prevail over the earlier. It may be noticed in this connection that in the said Act, there is no saving clause in this Act. Thus the aforesaid provision will completely obliterate the provisions as contained in the entire Act. According to well established principle of (sic). Even earlier in the case of United Province v. Most Atika Begam AIR 1941 PC 16 it was held that when two Acts are clearly inconsistent with or to the other the former will be deemed or amended as to last expression must always prevail. In this connection a mention may also be made to the well established principle of law as contained in the Max Well on the interpretation of statue (12th Edition) at page 16 which provides as follows :
"If the Act expires or was repealed it was recorded in absence of provisions to the contrary as having never exceeded." .
11. I am referring to the aforesaid decisions for two reasons firstly there is no saving clause in the said Act according to which the earlier law existing on the subject was saved. Moreover the said Act has not repealed the relevant provisions of the Mohammadan Law as contained in Mulla's book. Under the aforesaid circumstances I have analysed and laid down the law on the subject, from which it would appear that after coming into force of the said Act the earlier law as contained in Section 292 of the Mohammadan Law will cease to existence. Since in the said Act there is no provision for limitation it will follow that for filing a petition under Section 3(2) of the said Act no limitation is prescribed. As noticed above the limitation prescribed under Section 292 of the Mohammadan Law had not as yet expired at the time when the said Act had come into force. Under this circumstance the period of limitation as prescribed under Section 292 of the Mohammadan Law will cease to have any effect vis-a-vis the petition filed under Section 3(2) of the said Act inasmuch as the earlier law will be deemed to have been obliterated and the latter law (the said Act) must always prevail. From the aforesaid also it would appear that the impugned order is bad inasmuch as it has solely relied on Section 292 of the Mohammadan Law which was no longer enforced after coming into force of said Act on 19-5-1986. Hence the learned Magistrate was obviously wrong in holding that the claim of the petitioner was time barred.
12. Another thing to be noted in this connection is that the suit under Mohammadan Law has to be distinguished from a case under the provisions of the said Act since they are completely different and are distinct governed by their respective laws. While a suit for dower under Section 292 of the Mohammadan Law is a case of civil nature to be decided by a Munsif or a Sub Judge the case under Section 3 of the said Act is of criminal nature to be decided by a Magistrate. Moreover as noticed above the non-obstante clause as contained in Section 3 clearly shows that it has to be followed notwithstanding anything contained in any other law. Further in the present case three reliefs have been claimed namely, (i) payment of dower debt (ii) maintenance for life and (iii) recovery of ornaments whereas the bar as contained in Section 292 of the Mohammadan Law was only for a suit for dower debt and for no other relief. Under the aforesaid circumstances also Section 292 of the Mohammadan Law will not apply to the present proceeding for the reasons stated above.
13. In this connection a reference may also be made to the case of Haroon Rashid v. Requeeba Khatoon (1997) 1 Pat LJR 278. This is a Bench decision of our Court. This reference to the Division Bench was made in view of the fact that two single Judgments of this Court reported in 1987 Pat LJR 65 (Md. Yunus v. Bibi Pherkani alias Tasrun Nisa) reported in (1989) 2 Bihar LJ 671 (Md. Arif v. Bibi Jamila Khatoon) were of conflicting view regarding determination and interpretation of Sections 3 and Section 4 of the said Act. After a detailed discussion it was held that according to Sections 3 and 4 of the said Act of Divorce Muslim Women is entitled to thee following reliefs ;- She is entitled to get a reasonable and fair maintenance for Iddat period and a reasonable provision to be made and paid to her within Iddat period in lump sum or monthly instalment which should be determined according to the reasonable needs of divorced wife for the rest of her life or till remarriage the standard of living in general by her during her marriage and the means of her former husband. In addition she is entitled to her Mehar or Dower amount and the properties given to her. Thus from this decision of the Division Bench it would appear that the petitioner would be entitled to fair maintenance for her Iddat period and to a fair and reasonable provision to be made and paid to her for in accordance with the reasonable need of the divorced wife for the rest of her life or remarriage. This is a Bench decision of this Court and has'very clearly laid down the law on the subject.
14. Learned counsel appearing on behalf of the opposite party has drawn my attention to the case of Ramesh Singh v, Chinta Devi (1996) 2 Pat LJR 3 ; (AIR 1996 SC 1560). Reliance on this decision has been placed to show that since the cause of action for the suit had arisen before coming into force of the said Act the proceeding will have to be governed by Section 292 of the Mohammadan Law which provides for a period of limitation of three years only. Since this period had already expired the present petition is not maintainable. This decision of the Hon'ble Supreme Court is, however, of no help to the learned counsel appearing on behalf of the respondents. In this decision it has simply been provided that if a new Act repeals an old Act then unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively the right to appeal will crytalise for the appellant on the institution of the application in the tribunal for the first instance and that the vested right of appeal could not be disallowed by the enactment of the Act. This was a case under the Motor Vehicles Act, 1988 under whose Section 173 proviso the deposit of amount was not required to be made in case of appeals arising out of the claims filed under the old Act of 1939 prior to the enforcement of the new Act, to dispose of in the period when the new Act had come into force. In the present case there is no question of any appeal having been filed under the old Act. Hence this decision is of no help to the learned counsel for the opposite party. Moreover here there is no question of any repeal of any old Act. It is only due to non-obstante clause that the provisions of the old Law have been made nugatory and completely obliterated. Hence this decision is of no consequence so far as the present case is concerned. However, so far as the principle of law is concerned there is no dispute on the point decided in this decision in which reliance has also been placed on the case of Hoosein Kasam Dada (India) Ltd: v. State of M.P. 1953 SCR 987 : (AIR 1953 SC 221 at p. 222). This is a leading case on the subject in which it was held that the lis to file an appeal will arise out of old Act since the right to appeal is vested under the Old Act on the date of filing of the application itself and it could not be dislodged by a subsequent Act.
15. From the detailed discussions made above it becomes perfectly clear to me that the impugned order cannot be allowed to stand. It is, accordingly, quashed. The case is remanded back to the learned Court below for passing necessary order in accordance with law in the light of the observations made above after giving the parties an opportunity of being heard.