SABARAK HUSSAIN v. SAHIDA KHATUN — 1989 DIGILAW 868 (ALL)

AMARABLIA SENGUPTA, J. In this application styled as one under Section 482 of the Cr. P. C, an order dated 29-2-88 passed by the Additional Sessions Judge of Alipore in Cr. Revision No. 180/87 and affirming an order dated 30-5-87 passed by a Judicial Magistrate on a petition of the petitioner relating to a matter of maintenance under Section 125 of the Cr, P. C. is challenged. 2. The relevant facts are follows : The petitioner Sabarak Hossain was the husband of the opposite party Sahida Khatun. Some children had also been born of the wedlock. In May, 1983 the opposite party obtained as against the petitioner an order of maintenance under Section 125 of the Cr. P. C. at the rate of Rs. 100 per month for herself and at the rate of Rs. 50 per month for the children. She had, however, been divorced by the petitioner before the passing of the order of main tenance. The order of maintenance was upheld by the High Court on 11-10-85 subject to some variation of the order in relation to a married daughter of the petitione SAHIDA KHATUNi 3. Since the passing of the maintenance order the petitioner paid only a part of the amount due to the opposite party. The dues that remained outstanding till March, 1986 amounted to Rs. 17, 250. At the instance of 1 opposite party wife the amount was under process of recovery by the Magistrate and Distress Warrant was issued. 4. In this situation the petitioner moved the Court for dropping the recovery proceeding in view of the orovisions of the Muslim Women (Protec tion of Rigms on Divorce) Act, 1986 (hereinafter referred to as the new Actt. This new Act came into force on 19-5-1986. 5. The learned Magistrate by his order dated 23-5-87 rejected the prayer of the petitioner holding that the new Act puts an end to the liability of the petitioner to pay the maintenance subsequent to March, 1986 and that he can not escape the liability to pay the maintenance till March, 1986. 6. It is not clear why the Magistrate limits the liability period till March, 1986 when the new Act came into force on 19-5-F6. However, that was a Criminal Revision against the"; above order of the learned Magistrate. 6. It is not clear why the Magistrate limits the liability period till March, 1986 when the new Act came into force on 19-5-F6. However, that was a Criminal Revision against the"; above order of the learned Magistrate. That Revisional Application was heard and dismissed by the Additional Sessions Judge of Alipore by his order dated 29-2-88. 7. That order dated 29-2-88 of the Additional Sessions Judge is chal lenged before us in the instant application. 8. If the instant application is treated as a Revisional Application under Section 397 of the Cr. P. C. it cannot be maintainable in view of sub-section (3) of Section 397 of the Cr. P. C. on the ground of its being the second Pevisional Application. 9. But this application is styled as one under Section 482 of the Cr. P. C. and it is submitted that on purely a matter of law interference of thu Court in exercise of its inherent powers is sought. The point of law arises with regard to the question as regards the continuance of the liability of 1 petitioner to pay the maintenance under Section 125 of the Cr. P. C. in view of the coming into effect by the new Act. The learned Advocate lor tn opposite party submitted that this Court can go into the said question of law despite there having been one unsuccessful Revisional Application belore me Additional Sessions Judge. 10. Accordingly, I have heard the matter to decide correctness of the impugned order in the context of the point of law raised. 11. The simple point for our determination is whether in view of the provisions I of the new Aet, the liability of the petitioner to pay the arrear amount payable to the opposite party under maintenance order March, 1986 (for which Distress Warrant was directed to be issued) is stil continuing. 12. Relying upon the Division Bench decision in Abdul Sattar v. Sahani Bibi, 1989 C Cr LR (Cal) 197, learned Lawyer for the petitioner sought to impress upon this Court that since with the coming into eiiect ol the new Act Section 125 of the Cr. P. C. should be treated as non est in respect of divorced Muslim women, any proceeding for realisation of amount of main tenance due under an order under Section 125 of the Cr. P. C. must also necessarily be incompetent. , , 13. P. C. should be treated as non est in respect of divorced Muslim women, any proceeding for realisation of amount of main tenance due under an order under Section 125 of the Cr. P. C. must also necessarily be incompetent. , , 13. In my view, the above logic does not hold good in respect of any proceedings for recovery of the amounts due for any period prior to the coming into effect of the new Act. For one thing, the provisions of the new Act have not been given retrospective operation and, therefore, claimstenance for periods when the new Act was not in force are valid claims and canot be assailed, even though such claims remain unpaid on the date the new Act came into operation. 14. For another, in the reported case Abdul Sattar v. Sahani Bibi, the Division Bench has made in clear that "in respect of divorced woman if an order under Section 125 of the Cr. P. C. was passed that order will cease to have effect on the date of commencement of the Act. " It is thus clear that an order under Section 125 of the Cr. P. C. remains as a valid order till 19-5-86 which is the date of commencement of the new Act. If such an order is valid order till 19-5-86, all claims under such order for the period till 19- 5-86 are also valid. Such valid claims cannot be treated to have lapsed merely on the ground that they remained unpaid on the date of commencement of the new Act. 15. In the case at our hand, the claim of the opposite party is for arrear maintenance amounts due to her for the period ending March, 1986 for which the Distress Warrant has been directed to be issued. That claim not being for any period subsequent to the date of commencement of the new Act is a valid claim and therefore, the same has not lapsed. Indeed, the liability of the peti tioner to pay the maintenance under the order under Section 125 of the Cr. P. C. continues but only for the period till 19-5- 86 (when the new Act came into force) and not merely upto March, , 1986. Indeed, the liability of the peti tioner to pay the maintenance under the order under Section 125 of the Cr. P. C. continues but only for the period till 19-5- 86 (when the new Act came into force) and not merely upto March, , 1986. His liability to pay the maintenance for any period subsequent to 15-5-86 has ceased, because in view of the reported decision the order passed under Section 125 of the Cr. P. C. ceased to have any effect on 19-5-86 being the date of commencement of the new Act. 16. If we take a different view, the payments already made by a person pursuant to an order under Section 125 of the Cr. P. C. but before the coming into force of the new Act will have the character of wrongful payments, being payments made under an order tubsequently invalidated by the new Act and consequently that will give rise to a right to recover the amounts so paid. This would be an absured position and cannot be taken to have been intended by the Legislature. 17. The Division Bench decision referred to also does not say that with the introduction of the new Act the existing maintenance orders become void ab initio and the liability thereunder also lapses from the very beginning. The Division Bench decision has clarified only that the maintenance orders become ineffective on the date of commencement of the new Act. Till then, therefore, the orders are effective. If so, the liability to pay maintenance under those orders relating to the period till 19-5-86 remains and proceedings to recover the arrear maintenance amounts due for any period prior to 19-5-86 are com petent even after 19-5-86. 18. On the foregoing reasons I see no reason to interfere with the order passed by the Court below. This application is accordingly dismissed. 19. Learned lawyer for the petitioner has made an alternative oral prayer for an order enabling the petitioner to pay up the arrear amounts in suitable instalments, in the event he is found liable to pay the same. This prayer has been opposed by the learned lawyer for the opposite party. I have considered the prayer. I am not disposed to entertain the same in the instant application. The prayer is refused. This, however, will not debar the learned Magistrate to consider similar prayer if made before him. This prayer has been opposed by the learned lawyer for the opposite party. I have considered the prayer. I am not disposed to entertain the same in the instant application. The prayer is refused. This, however, will not debar the learned Magistrate to consider similar prayer if made before him. No order as to costs. Application dismissed. .