Mohammad Yameed vs State Of Uttar Pradesh And Anr. on 9 January, 1992

    Mohammad Yameed vs State Of Uttar Pradesh And Anr. on 9/1/1992

ORDER

   Palok Basu, J.

   1. The short question for consideration in the present criminal revision is
as to whether an order Under Section 125, Cr. P.C. though passed before the
coming into force of the Muslim Women (Protection of Rights on Divorce) Act,
1986 (for short the Muslim Women's Act) can still be executed?

   2. It is undisputed that the opposite party Smt. Latifan was the legally
married wife of Mohd. Yameed applicant. On the allegations that the husband had
neglected to maintain her as also the child an application Under Section 125,
Cr. P.C. was moved before the magistrate for herself as also for her child on
16-2-84. The magistrate after taking evidence directed payment of maintenance
allowance to the divorced wife at the rate of Rs. 150/- per month. On the
further allegation that the husband had not complied with the said order and did
not make the payment of the maintenance allowance Smt. Latifan made an
application on 24-1-1990 Under Section 128, Cr. P.C. before the magistrate
concerned for enforcement of the said order. By a well-reasoned judgment dated
28-3-1990 Sri Alok Saxena, the Munsif-Magistrate directed that the enforcement
of the order dated 18-7-1985 was to be made only in accordance with the
provisions contained in Section 3 of the Muslim Women's Act. This he did on the
specific objection having been raised on behalf of the applicant husband that
the order dated 18-7-1985 passed Under Section 125, Cr. P.C. was not enforceable
as it were. Sri V.K. Shukla, learned counsel for the applicant, has filed this
revision because the wife had taken up the order of the magistrate to the court
of the Sessions Judge by way of revision which was allowed on the finding that
since the order of the magistrate dated 18-7-1985 was passed before 19-5-1986
i.e. the date on which the Muslim Women's Act came into force, the magistrate's
order was liable to be set aside. It was argued vehemently by Sri Shukla that
the view taken by the Sessions Judge is erroneous and the magistrate had in
fact, correctly interpreted the law and the facts.

   3. Sri V.M. Zaidi, learned counsel appearing for the unfortunate wife Smt.
Latifan though tried to canvass that she is still entitled to some maintenance
in view of the provisions contained in the Cr. P.C. but could not rebut the
legal presumption flowing from the provisions contained in the Muslim Women's
Act. This takes us to a closer look of the provisions contained in the Muslim
women's Act and also to the discussion as to what should happen to the
provisions of the Cr. P.C. relating to grant of maintenance to a divorced muslim
wife.

   4. Let it be stated here at once that in view of the discussion following, a
Muslim woman in India cannot get any maintenance from her husband in accordance
with the provisions contained under the Cr. P.C. if she has been divorced by the
husband. The liability of Muslim husband could only be those which are imposed
by the Muslim Personal Law on a husband choosing to divorce a wife. In fact, the
very purpose of the enactment of the Muslim Women's Act was to get over the law
laid down by the Supreme Court in the case of Mohd. Ahmad Khan v. Shah Bano and
it was thus ensured that the said decision be not made the basis for claim of
maintenance by a divorced Muslim wife.

   5. An interesting feature in the prevalent codified law relating to grant of
maintenance in summary proceedings Under Section 125 Cr. P.C. (Act 2 of 1974) is
that a 'divorcee' has been included within the meaning of the word 'wife' making
application for such an allowance. Since under the old Cr. P.C. of 1898 the word
'wife' did not include a 'divorcee', the question of invasion on any personal
law never arose. However, it was held in Shah Bano's case (supra) that
'divorcee' could mean any woman divorcee of India for whose welfare the
beneficial legislation was enacted. As it transpired, the ruling in Shah Bano's
case was objected to by a section of Indian polity as going against their
personal laws. Thus came the Government's intervention and at its initiative
came to be enacted the Muslim Women's Act. The provisions contained in the
Muslim Women's Act supposedly safeguard personal law of a Muslim husband and his
liability of maintenance towards his divorced Muslim wife. In other words,
Muslim Women's Act protects the rights of a divorced Muslim wife which is
conferred on her by the Personal Muslim law.

   6. Section 2 of the Muslim Women's Act defining a 'divorced Muslim woman'
includes a Muslim woman who was married according to Muslim law and has been
divorced. 'Iddat' period has also been defined in Clause (b). Section 3(1)
begins with a non obstante clause and further says "Notwithstanding anything 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,

     (c) an amount equal to the sum or mahr 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.

     Sub-sections (2), (3) and (4) of Section 3 should also be usefully quoted
here so as to have a complete view of its effect on the Cr. P.C. and its
provisions relating to maintenance claims hereunder.

     (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 a divorced woman on her
divorce, 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, mahr or dower or the delivery of properties, as the case may be".

     (3) Where an application has been made under Sub-clause (2) by a divorced
woman, the Magistrate may, if he is satisfied that --

     (a) her 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; or

     (b) the amount equal to the sum of mahr or dower has not been paid or that
the properties referred to in Clause (d) of Sub-section (1) have not been
delivered to her,

     make an order, within one month of the date of the filing of the
application, directing her former husband to pay such reasonable and fair
provision and maintenance to the divorced woman as he may determine as fit and
proper having regard to the needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of her former husband or, as
the case may be, for the payment of such mahr or dower or the delivery of such
properties referred to in Clause (d) of Sub-section (1) to the divorced woman;

     Provided that if the Magistrate finds it impracticable to dispose of the
application within the said period, he may, for reasons to be recorded by him,
dispose of the application after the said period."

   7. Section 4 of the Muslim Women's Act creates a liability for the relatives
of the Muslim women who may be succeeding to her property and in the event of
failure of such relatives to make provision for her maintenance or honouring the
liability fixed on them, the State Waqf Board is saddled with the liability to
make provision or allowance for the divorced woman. Similarly Section 5 of the
said Act gives an option to the parties to the proceedings before the magistrate
Under Sections 125 to 128, Cr. P.C. that if by an affidavit or declaration they
make a statement that they would be abiding by the provisions contained in
Sections 125 to 128, Cr. P.C. the magistrate shall dispose of such application
accordingly. Section 6 empowers the Central Government to make some rules for
giving effect to the purposes of the Act.

   8. Section 7 is the transitional provision which may be usefully quoted :--

     7. Transitional provisions :-- 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.".

   9. On a combined reading of the provisions contained in Sections 3, 4 and 7
it transpires beyond doubt that a Muslim Woman cannot maintain her application
Under Section 125, Cr. P.C. or Under Section 127, Cr. P.C. or even get execution
of the order Under Section 128 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. As argued by
Sri Zaidi this may result in hardship but then the purpose of the law must be
carried to its logical end.

   10. Coming to the facts of the present case, it may be noticed that the
Sessions Judge had upset the view of the Magistrate on the supposed finding that
there was conflict of opinion in the two decisions of this Court. The first
authority is that of Ghulam Sabir v. Rayeesa Begum (1988 UP Cri R 182) : (1988
All LJ 873) and the other authority is Faizuddin Khan v. Addl. Sessions Judge
reported in 1990 UP Cr R 107 (2) : (1990 All LJ 365). The view of the Sessions
Judge was that in the former case a learned single Judge has held that since the
provisions of the Muslim Women's Act are not retrospective Section 125, Cr. P.C.
would continue to apply to the period of time earlier than 19-5-1986 but while
holding so, it was held that the amount falling due prior to 10-5-1986 could be
got enforced. In the latter case another learned single Judge has also held that
the Muslim Women's Act is not retrospective in operation and has, therefore,
held that a liability accruing for payment of the maintenance allowance due to
an order Under Section 125, Cr. P.C. prior to 19-5-1986 could, in spite of the
provisions of the Muslim Women's Act, be enforced under the provisions contained
in the Cr. P.C. The learned Sessions Judge has preferred to follow the latter
decision and came to the conclusion that since in the instant case the order has
been passed by the magistrate on 18-7-1985, therefore, that order survives. At
the outset this Court would like to make it clear that both the learned single
Judges had held that the provisions contained in the Muslim Women's Act were not
retrospective. To this Court, however, it appears wholly unnecessary to go into
the question of prospective or retrospective operation of the provisions
contained in the Muslim Women's Act. The fact remains that in view of Sections
3, 4 and 7, the provisions of Cr. P.C. are applicable only to the extent
permissible by the Muslim Women's Act and no more. Once this is so, a divorced
Muslim 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 Muslim Women's Act. Under the circumstances the
opposite party Smt. Latifan could not claim execution of the order of the
Magistrate dated 18-7-1985 under the provisions of the Cr. P.C. by moving an
execution application on 24-1-1990 when the Muslim Women's Act had begun to
operate.

   11. As stated above, the magistrate had correctly applied the law and had
directed only that much to be paid as could be the liability of the husband
Under Section 4 of the Muslim Women's Act. Therefore, his order has to be
restored.

   12. Consequently, this revision is allowed. The order of the Third Additional
Sessions Judge, Bijnor, dated 29-7-1991 is set aside and the order dated
23-9-1990 passed by the Munsif Magistrate, Bijnor, in Misc. Case No. 17 of 1989
Mohd. Yameed v. Latifan is restored.