Karnataka High Court
Nagoor Mohamed Farooq And Others vs Smt. Mavada Roashan Jahan And Others on 7 August, 2000
Equivalent citations: I(2001)DMC596, ILR2001KAR403, 2001(4)KARLJ216
Author: H.N. Narayan
Bench: H.N. Narayan
ORDER H.N. Narayan, J.
1. Cri. P. Nos. 2891 of 1995, 66, 67 of 1996 and 68 of 1996 are directed against the common order dated 19-8-1995 passed by the Additional Judicial Magistrate First Class, Kundapur in M.C. Nos. 223 of 1991, 193 of 1993, 199 of 1992 and 227 of 1994 respectively.
2. Cri. P. No. 499 of 1996 is directed against the order dated 28-9-1994 passed by the III Additional Civil Judge and Chief Judicial Magis-
trate, Mysore in Cri. Misc. No. 103 of 1989 and the order dated 20-9-1995 passed by the II Additional District and Sessions Judge, Mysore in Cri. R.P. No. 119 of 1994 while Cri. P. No. 1286 of 1995 is directed against the order dated 12-6-1995 passed by the Additional Munsiff and Judicial Magistrate First Class, Kundapur in M.C. No. 56 of 1994.
3. While Cri. P. Nos. 2891 of 1995, 66, 67 and 68 of 1996 and 1286 of 1995 are filed by the husband challenging the dismissal of his applications filed under Sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ("the Act", for short), Cri. P. No. 499 of 1996 is filed by the wife assailing the order of the Chief Judicial Magistrate and II Additional District and Sessions Judge, Mysore, who have allowed the maintenance under Sections 3 and 4 of the Act and dismissing the maintenance petition filed under Section 125 of the Cr. P.C. Though the facts in Cri. P. Nos. 1286 of 1995 and 499 of 1996 differ from the other, common question of law is involved in all these petitions. They are therefore taken up together for disposal by the consent of the learned Counsels on both sides, heard and disposed of by this common order.
4. In Cri. P. Nos. 2891 of 1995, 66, 67 and 68 of 1996 the hushand, petitioner herein suffered an order of maintenance which was granted in favour of the respondent in M.C. No. 28 of 1983 on the file of the Judicial Magistrate First Class, Kundapur. The order was passed on 22-11-1986 granting maintenance at the rate of Rs. 500/- p.m. to the 1st petitioner-wife, Rs. 250/- p.m. to the 2nd petitioner. Aggrieved by the said order, respondent therein (the present petitioner) filed Cr. R.P. No. 161 of 1986 on the file of the District and Sessions Judge, Mangalora, who in his order dated 27-3-1987 confirmed the order of the Magistrate, but reduced the rate of maintenance to Rs. 300/- p.m. to the 1st petitioner and Rs. 150/- p.m. to the 2nd petitioner. This order has become final. The wife and her child thereafter filed several recovery maintenance petitions before the Magistrate. The petitioner herein filed an application under Sections 5 and 7 of the Act objecting for enforcement of the order on the ground that the Magistrate has no jurisdiction to entertain maintenance petition after coming into force of the Act 1986. However, he has admitted that he divorced his wife on 30-7-1989. The learned Magistrate relying upon the judgment of this Court in Abdul Khader v. Razia Begum, dismissed the said application and held that the recovery proceedings initiated by the wife and son are maintainable.
5. In Cri. P. No. 1286 of 1995 the respondents who are the wife and minor son of the petitioner herein presented a petition under Section 125 of the Cr. P.C. for maintenance on the grounds alleged in the petition. Upon service of notice, the respondent-husband, petitioner herein filed objections contending that the 1st petitioner in M.C. case is a divorced wife and is not entitled for any maintenance under the Code. Therefore, the petition is not maintainable. The learned Magistrate dismissed the objections filed by the respondent holding that the petition filed under Section 125 of the Cr. P.C. is maintainable. In the course of his order, learned Magistrate has opined that under the provisions of the Act, the divorced Muslim wife is entitled to claim fair and reasonable provisions of maintenance within the Iddat period and also Dahaj articles given by her relatives and friends at the time of marriage including the mehr amount and Iddat period amount which are the specific provisions which are provided to a divorced Muslim woman. Whereas, under the provisions of Sections 125 to 128 of the Cr. P.C. if a divorced Muslim woman files a petition under Section 125 of the Cr. P.C., she has to file an affidavit stating that under which provision she would like to be governed and an affidavit is so made by her. Upon this he rejected the objections filed by the husband.
6. In Cri. P. No. 499 of 1996, the petitioner herein filed a maintenance petition under Section 125 of the Cr. P.C. before the III Additional Civil Judge and Chief Judicial Magistrate, Mysore. It was contended in that petition that she was a divorced wife and was not entitled for maintenance under Section 125 of the Cr. P.C. Upon consideration of these contentions, learned Magistrate allowed the petition in part, directing the respondent-husband to pay maintenance for Iddat period at the rate of Rs. 500/- p.m. for 3 months and mehr amount of Rs. 525/-. Aggrieved by the said order, she preferred Criminal Revision Petition No. 119 of 1994 before the II Additional District and Sessions Judge, Mysore, who in turn modified the order of the Magistrate by granting the maintenance from the date of petition i.e., 28-2-1989 till the date of objection filed by the respondent i.e., 5-10-1989 at the rate of Rs. 500/-and a sum of Rs. 500/- during the Iddat period for 3 months. Not satisfied with this order, the wife preferred this petition for quashing the order and allow the petition filed under Section 125 of the Cr. P.C.
7. Before taking up the common questions of law canvassed in these petitions, I propose to dispose of the factual contentions raised in Cri. P. Nos. 499 of 1996 and 1286 of 1995.
8. In Cri. P. No. 499 of 1996, the Courts below accepted the husband's contention that the petitioner therein was a divorcee and that the maintenance petition under Section 125 of the Cr. P.C. is allowed only to the extent of granting maintenance during Iddat period and mehr amount as provided under Section 4 of the Act of 1986. It is contended by the petitioner who has filed maintenance petition before the Magistrate that she is entitled to maintenance under Section 125 of the Cr. P.C. as long as she remained unmarried. This contention, in my opinion, has no" force of law and is required to be rejected. I propose to answer this question in detail when I take up the legal aspects of the case. It is also contended that the decision rendered by this Court in Syed Kareem v. Smt. Zarina Bi, applies to pending petitions, which is not correct. However, I find on facts that the findings of the Trial Court that in case of a petition filed under Section 125 of the Cr. P.C. by a divorced Muslim woman is not maintainable unless both the parties file affidavits in writing preferring to be governed by Sections 125 to 128 of the Cr. P.C.
9. In Cri. P. No. 1286 of 1995, the wife and the minor son presented maintenance petition under Section 125 of the Cr. P.C. The respondent-husband contended that the 1st petitioner is a divorced wife and she is not entitled to prosecute the proceedings in view of the provisions of Sections 5 and 7 of the Act.
10. The question before the learned Magistrate was whether the application so made by the respondent on 7-7-1994 was maintainable.
11. While upholding the legality of Talak granted by the respondent as commented under Section 310 of the Mulla's Mohatnmadan Law, the learned Magistrate has relied upon the affidavit filed by the petitioners wife alone subjecting herself to the jurisdiction of the Magistrate and the same is objected by the husband. It is seen that the learned Magistrate has not properly understood the scope of provisions of Sections 5 and 7 of the Act and erroneously dismissed his objections. Therefore, the very question is canvassed for consideration in this petition by the husband.
12. Now the common questions which arise for consideration in all these petitions are:
(1) Whether a divorced Mohammadan wife can maintain a petition under Sections 125 to 128 of the Cr. P.C.?
(2) Whether a divorced Mohammadan wife can initiate maintenance proceedings under Section 125 of the Cr. P.C. after coming into force of the Act 1986?
(3) Whether a divorced Mohammadan woman can enforce maintenance order granted prior to coming into force of the Act 1986?
13. Divergent views are expressed by the different High Courts in India on some of these controversies. The learned Counsels on both the sides relied upon those decisions which support their own contentions. It is my endeavour to find out the correct position of law.
14. To understand these questions of law, I propose to extract the provisions of the Act of 1986.
Under Section 3 of the Act, a divorced woman is entitled to-
(a) a reasonable and fair provision and maintenance to he 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;
(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mehr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to her (divorced woman), 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, mehr or dower or the delivery of properties, as the case may be.
Insofar as where such an application has been made, the Magistrate may, if he is satisfied, shall proceed in accordance with clauses (a) and (b) of sub-section (3) of Section 3 of the Act.
15. Section 3(1)(b) provides for maintenance of children born to her before or after her divorce. Section 4 refers to the maintenance of a woman after iddat and maintenance of such woman by her children or parents or State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), as the case may be. This is the new provision of law enacted under the Act governing the divorced woman insofar as her right to be maintained at the time of divorce or thereafter. Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128 of the Cr. P.C. If both the divorced wife and husband declare jointly or separately that they would prefer to be governed by the provisions of Sections 125 to 128 of the Cr. P.C. and file such affidavit or declaration in the Court for hearing the application, the Magistrate has to dispose of such application accordingly. Section 7 of the Act is a transitional provision governing the pending proceedings initiated under Section 125 or 127 of the Cr. P.C. It provides as under:
"Every application by a divorced woman under Section 125 or under 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".
The Act is prospective and there is nothing to indicate in the Act that it is retrospective in nature. The jurisdiction of the Magistrate under Section 125 or 127 of the Cr. P.C. is not ousted where a wife approaches him for grant of maintenance provided the husband has no objection to pass such an order provided he files an affidavit or declaration in the Court hearing the application, Section 5 of the Act makes it clear that the intention of the husband to subject himself to the jurisdiction of the Magistrate in deciding the application filed under Sections 125 to 128 of the Cr. P.C. only upon his filing an affidavit or declaration in the Court in writing and not others. Where an application is made under Section 125 of the Cr. P.C. by a divorced woman or where a plea is taken by the husband that the petitioner is a divorced wife and on proof of such divorce, the Magistrate cannot proceed under Section 125 or 127 in granting the maintenance except as provided under Sections 3 and 4 of the Act. It is the limitation introduced under the Act for the Court to pass orders under Section 125 of the Cr. P.C. Therefore, a divorced Mohammadan wife cannot maintain a petition under Section 125 of the Cr. P.C. except under the provisions of Section 5 of the Act. She is not entitled for maintenance as of right under Section 125 of the Cr. P.C. in view of the limitations introduced under the Act of 1986.
16. That takes me to the next question whether a Mohammadan wife can maintain a petition under Section 125 of the Cr. P.C. after coming into force of the Act. If so, whether an order passed in the said petition after coming into force of the Act is enforceable.
17. Insofar as the enforcement of maintenance order under Section 125 of the Cr. P.C. made prior to the coming into force of this Act, this Court in Mohammed Jahir v. Smt. Nazrath Fatima, held that the orders which were passed after the amendment will be bound by the provisions of Sections 3, 4, 5 and 7 of the Act of 1986 and the order passed by the learned Magistrate on 27-3-1987 after the amendment which came into force on 19-5-1986 is without application of mind with respect to the Central Amendment Act 25 of 1986 and is contrary to the provisions of Central Amendment Act 25 of 1986.
17-A. However, Allahabad High Court in Mohammed Yameed v State of Uttar Pradetsh, while considering the scope of Sections 3, 4 and 7 held as follows:
"On a combined reading of the provisions contained in Sections 3, 4 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, it transpires beyond doubt that a divorced Muslim woman cannot maintain her application under Section 125 of the Cr. P.C. or under Section 127 of the Cr. P.C. or even get execution of the order under Section 128 of the Cr. P.C. It is unnecessary to go into the question whether Muslim Women's Act is retrospective or prospective in its operation, the reason being that once a married Muslim woman assumes the character of a divorced woman, the provisions of Cr. P.C. will apply only to the extent permissible under Section 4 of the Muslim Women's Act. This may result in hardship but then in the purpose of the law must be carried to its logical end. Once this is so, a Muslim divorced woman loses her right to enforce an order passed even prior to the enforcement of the Act because of the non obstante clause used in Section 3 as also in Section 7 of the Act. Under the circumstances the opposite party Smt. Latifan could not claim execution of the Section 125 maintenance order of the Magistrate dated 18-7-1985 under the provisions of the Cr. P.C. by moving an execution application under Section 125 of the Cr. P.C. on 24-1-1990 when the Muslim Women's Act had begun to operate".
Justice Navadgi, as he then was, in Abdul Khader's case, supra, expressed contrary view. At para 34 of his judgment, it is held that if the provisions contained in the Act, keeping in mind the preamble, are examined, applying the test stated above, it cannot but be held that the Act is prospective. There is no provision in the Act taking away or impairing any vested right acquired by a divorced woman to claim maintenance under the existing general law or personal law. The Act does not create a new obligation, does not impose a new duty and does not attach a new liability in respect of past transactions or considerations. It only specifies the rights of a divorced Muslim woman at the time of divorce and protects her interests.
At para 56 it is held as follows:
"There is no section in the Act which renders an order passed by a Magistrate under Section 125 void. The non obstante clause with which Section 3 begins, supersedes the existing law relating and relevant to clause with which Section 4 begins shows that the provisions contained in Section 4 override the provisions contained in Section 3(1) or in any other law for the time being in force in respect of the subject dealt by it".
18. Having considered the law laid down in the cases cited supra, I am in respectful agreement with the view expressed in Abdul Khader's case and Mohammed Jahir's case, supra and in my view the rights vested under Section 125 of the Cr. P.C. is not taken away by the new Act and in the absence of any provisions under the new Act creating a bar for enforcement of the order passed under Section 125 of the Cr. P.C. before coming into force of this Act, in my opinion a Mohammadan wife who obtained an order of maintenance under Section 125 of the Cr. P.C. is entitled to enforce the said order of maintenance.
19. Insofar as pending petitions filed under Section 125 of the Cr. P.C. is concerned, the parties are governed by Section 7 of the Act. Insofar as pending petitions filed under Section 125 of the Cr. P.C. as on the date of the coining into force of the Act of 1986, Section 7 of the Act governs the proceedings. This is subject to the provisions of Section 5 of the Act. It may be clarified that Sections 5 and 7 of the Act are applicable to the pending proceedings only if the husband is able to prove that the petitioner is a divorced wife and that he is not prepared to subject himself to the jurisdiction of the said Magistrate. The jurisdiction of the Magistrate is ousted if anyone of the parties to the proceedings after coming into force of the Act opts out of the jurisdiction. Consideration of such an application for maintenance under Section 125 of the Cr. P.C. after coming into force of the Act shall be in accordance with the provisions of Sections 3 and 4 of the said Act.
20. Commenting on the provisions of Sections 125, 127 and 128 of the Cr. P.C. and applicability of Section 7 of the Act 1986, the Gauhati High Court in Idris All v. Ramesha Khatun , has held as follows:
"The prerequisite condition for application of Section 7 of the Act of 1986 is that an application under Sections 125 and 127 of the Cr. P.C., must be pending before the Magistrate on the commencement of the Act of 1986. 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 of the Cr. P.C. and became final. It must be noticed that in Section 7 of the Act of 1986 word "Magistrate" has been used twice and as such the Magistrate should act in accordance with the provisions of this Act which means that even the High Court in revision, if it is pending on the date of commencement of Act cannot deprive Muslim women of their rights of maintenance under Sections 125 and 127 which had been allowed by the Magistrate earlier and which had become final to that extent. Further, if a divorced Muslim woman approaches the Court of a Magistrate for execution of final order already passed under Sections 125 and 127 of the Cr. P.C., earlier to the Act of 1986 then she will have a right to get the order executed under Section 128 of the Cr. P.C. which section has been excluded from Section 7 of the Act of 1986, and Section 7 of the 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 of the Cr P.C., on the date when the new Act of 1986 came into force and are still pending and such application had been moved by a divorced woman. A Muslim divorced woman or her husband cannot move before a Magistrate for cancellation of order of maintenance already granted simply on the ground that the new Act of 1986 has come into force".
21. Thus I find that the judgment rendered by the Gauhati High Court supports the view taken by Justice Navadgi (as he then was), in Abdul Khader's case, supra, on which I have already expressed my affirmation of law laid down therein.
22. The Gujarat High Court in Arab Ahemadhia Abdutla v. Arab Bail Mohmuna Saiyadbhai and Others, at Head note "C" (paras 34, 35 and 36) expressed a similar opinion in the following words:
"By the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986, the orders passed by Magistrate under Section 125 of the Cr. P.C. ordering Muslim husband to pay maintenance to his divorced wife would not be non est. There is no section in the Act which nullifies the orders passed by the Magistrate under Section 125 of the Cr. P.C. Further, once the order under Section 125 of the Cr. P.C. granting maintenance to the divorced woman is passed, then her rights are crystallized and she gets vested right to recover maintenance from her former husband. That vested right is not taken away by the Parliament by providing any provision in the Act. Under Section 5 an option is given to the parties to be governed by the provisions of Sections 125 to 128 of the Cr. P.C. This section also indicates that the Parliament never intended to take away the vested right of Muslim divorced woman which was crystallized before the passing of the Act. There is no inconsistency between the provisions of Act and the provisions of Sections 125 to 128 of the Cr. P.C. on the contrary the provisions of Muslim Women Act grant more relief to the divorced woman depending upon the financial position of her former husband".
Therefore, the maintenance petition under Section 125 of the Cr. P.C. filed prior to coming into force of the Act is quite maintainable and an order passed in the said petition prior to coming into force of the new Act is enforceable. But, in view of the provisions of Section 7 of the Act, all pending proceedings initiated under Section 125 of the Cr. P.C. are governed by the provisions of the Act of 1986.
23. Therefore, the following emerges from the discussion made supra:
(a) A petition under Section 125 of the Cr. P.C. by a Muslim divorced woman is perfectly maintainable subject to the provisions of Section 5 of the Act of 1986. If the husband of a Muslim divorced woman refuses to subject himself to the jurisdiction of the Magistrate, Magistrate is competent to grant maintenance to divorced Muslim woman under the provisions of the Act of 1986.
(b) If the maintenance petition under Sections 125 to 128 of the Cr. P.C. initiated prior to the coming into force of the Act was pending before, the Magistrate on the date of coming into force of the Act of 1986, it has to be disposed of by such Magistrate in accordance with the provisions of Act 25 of 1986.
(c) The petition to enforce the maintenance order granted prior to the coming into force of the Act is perfectly maintainable as her rights are crystallized and she gets vested right to recover maintenance from her former husband.
24. In view of this position of law, the recovery proceedings initiated by a divorced Muslim wife in M.C. Nos. 56 of 1994, 223 of 1991, 193 of 1993, 199 of 1992 and 227 of 1994 respectively on the file of the Additional Judicial Magistrate First Class, Kundapur which are impugned in Cri. P. Nos. 1286 of 1995, 2891 of 1995, 66, 67 and 68 of 1996 are perfectly maintainable in law and therefore, these petitions challenging the legality of the recovery proceedings initiated before the Judicial Magistrate First Class, Kundapur are dismissed.
Cri. P. No. 499 of 1996 which is directed against the order of the III Additional Civil Judge and Chief Judicial Magistrate, Mysore and the II Additional District and Sessions Judge, Mysore, in Cr. R.P. No. 119 of 1994 is also dismissed.