Research › Browse › Judgment

Calcutta High Court · body

1988 DIGILAW 253 (CAL)

SHRI MOHAMMAD AU v. SALIMA KHATOON ALIAS BEGUM

1988-07-01

PADMA KHASTGIR

body1988
A. C. SEN GUPTA, J. ( 1 ) THIS application filed on 28-1-1988 is directed as the cause title shows, against the Order No. 54 dated 22-12-87 passed by the learned Judicial Magistrate, 1st Class Amta in Misc. Ex. Case No. 3 of 1985. ( 2 ) THE petitioner's case, as it appears from the application, is mainly this: He was the husband of the opposite party No. 1. The petitioner gave three Talaks to the opposite party No. 1. in Caitra 1390 B. S. (March! April, 1983 ). The opposite party No. I filed the Misc. Case No. 5 of 1984 before the learned Judicial Magistrate, 1st Class; Amta against the petitioner claiming maintenance under Section 125 of the Code of Criminal Procedure. The petitioner contested that Misc. case. That Misc case was allowed in favour of the opposite party No; 1 by the learned Trial Court by his order dated 24. 9. 1985. Against that order of maintenance passed by the learned Judicial Magistrate under the aforesaid Misc. Case No. 5 of 1984 the petitioner preferred an application under Sections 397/399 of the Code of Criminal Procedure in the Court of the learned Sessions Judge, How rah which was registered and numbered as Criminal Motion No. 109 of 1985. The learned Sessions Judge, How rah by his order 17-1-86 rejected the petition for stay filed by the petitioner on 10. 1-86 and thereafter dismised the Criminal Motion. ( 3 ) THE opposite party No. 1 put the order for maintenance to execution in Execution Case No. 3 of 1985 already referred to. On 17-12-87 an application was filed on behalf of the petitioner before the learned Judicial Magistrate, 1st Class, Amta in the said Misc. Ex. Case No. 3 of 1985 wherein the petitioner inter alia prayed for setting aside and/or modifying the earlier order dated 24-9-85 passed by the learned Court in Misc. Case No. 5 of 1984. He made this prayer in the light of the express provision of the newly enforced Act being the Muslim Woman (Protection of Right on Divorce) Act. 1986 (hereinafter referred to as the Actt ). He also prayed therein for not proceeding with the said execution case pending before the learned Magistrate and to adjust the excess amount already paid by the petitioner to the opposite party No. 1 as mohor or dowry. 1986 (hereinafter referred to as the Actt ). He also prayed therein for not proceeding with the said execution case pending before the learned Magistrate and to adjust the excess amount already paid by the petitioner to the opposite party No. 1 as mohor or dowry. The learned Magistrate by his order dated 22-12-87 rejected that application of the petitioner on the ground that the said Act has come into force in the year 1986 and the Misc. Case No. 5 of 1985 has been disposed of in the year 1985 and that the Act has not been given any retrospective effect. , Being aggrieved by the said order the petitioner has filed this revisional application for setting aside that order dated 22-12-87. ( 4 ) IN the prayer portion of the present application the petitioner has also prayed for setting aside the order dated 24-9. 85 whereby the learned Magistrate allowed the maintenance case filed under section 125 of the Code of Criminal Procedure by the opposite party No. 1. It has already been noted that the revisional application under sections 387/399 I. P. C. filed by the present petitioner before the learned Sessions Judge has been dismissed by the learned Sessions Judge as stated in paragraph 7 of the present application. ( 5 ) THE learned Judge presiding over a single Bench of this Court has referred this matter to us because he found some apparent incongruity or apparent conflict between the three judgments of this Court, all of them having been passed by the different learned Judies of this Court each sitting singly. In his order he has referred to the judgments passed by three Judges of this Court. each the three judgments of the Single In his reorder he has referred to by the learned Judge the present petitioner banks upon - the judgment liven by the Honble Mr. Justice Manoj Kumar Mukherjee of this Court in Criminal Revision No. 1012 of 1986, a certified copy of which has been filed by the petitioner. From this judgment it cannot be ascertained as to whether the order for maintenance under Section 125 of the Code of Criminal Procedure was made by the Trial Court after the Muslim Woman (Protection of Rights on Divorce) Act, 1986 came into operation. From this judgment it cannot be ascertained as to whether the order for maintenance under Section 125 of the Code of Criminal Procedure was made by the Trial Court after the Muslim Woman (Protection of Rights on Divorce) Act, 1986 came into operation. The Act came into operation with effect from 19-5-86; If the application in question under Section 125 of the Code of Criminal Procedure referred to in that criminal case was pending before the Trial Court when that Act of 1986 came into operation that application under Section 125 of the Code ought to have been decided according to the provisions of the said Act of 1986. ( 6 ) THE point for consideration in the present case is whether the orders passed under Section 125 of the Code of Criminal Procedure before the said Act of 1986 came into operation would be affected by the provisions of this Act ( 7 ) AFTER considering the provisions of this Act of 1986 we are inclined to decide the point against the present petition and uphold the order of the learned Trial Court to the effect that as the Act has not been given any retrospective effect the order passed in the Misc. Case under Section 125 of the-Code of Criminal Procedure would stand and cannot TTe affected by the provisions of this Act of 1986. The language of the Act clearly shows that this Act has not been given any retrospective operation. ( 8 ) THE provisions of Section 7 of t4e Act cannot be applied to the circumstances of the presentcase. The Section 7 is quoted below: 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 prosions of this Act. ( 9 ) IN the present case no application by divorced woman under Section 127 of the Code of Criminal Procedure was pending before this learned Magistrate when the said Act of 1986 came into operation. Section 7 makes provisions in respect of an application under Section 127 of the Code of Criminal Procedure by a divorced woman and not by a husband. Section 7 makes provisions in respect of an application under Section 127 of the Code of Criminal Procedure by a divorced woman and not by a husband. No such application either under Section 125 or under Section 127 of the Code or Criminal Procedure having been pending when the Act came into operation and the Act having not been given any retrospective operation the provisions of this Act cannot affect the order passed under Section 125 of the Code of Criminal Procedure before this. Act of 1986 came into operation. ( 10 ) THE present revisional application is accordingly rejected and the Rule is discharged.