Muzaffar Alam v. Qamrun Nisa — 1990 DIGILAW 31 (PAT)

Judgment N. Pandey, J. This is an application for setting aside an order dated 10.6. 87 passed in trial no. 1418/ 85 by the Judicial Magistrate, Sikrahana at Mutihari. 2. The opposite party happens to be the wife of the petitioner filed a petition under section 125 of the Code of Criminal Procedure, 1973, on 13.11.85 in the court of Sub-divisional Judicial Magistrate, Sikarahana at Motihari, claiming maintenance of Rs.650 per month for herself and her son. She has claimed to be the legally wedded wife of the petitioner and has also got a son. It has been alleged in the petition that she and her son are not being maintained rather neglected by the petitioner. The opposite party has also alleged that the petitioner has contracted another marriage. 3. The petitioner filed his written statement on 28.2.86 and contradicted the allegation made in the petition filed under section 125 of the Code of Criminal Procedure. In paragraph I3 of the written statement the petitioner stated that he had divorced the opposite party. In the written statement it was further stated that the child does not belong to the petitioner and, therefore, he was not obliged to pay any maintenance to the opposite party and her son. 4. It appears from the order sheet of the lower court that on several dates the parties got adjournments on the plea that they would enter into compromise; but ultimately the compromise could not arrive at. Thereafter, the petitioner raised preliminary objection with regard to the maintainability of the proceeding itself on the plea that the opposite party is a divorced muslim woman and, therefore, no proceeding under sections 125 or 127 of the Code of Criminal Procedure, 1973 can lie. According to the petitioner, the opposite party being a divorced woman has got her remedy under "The Muslim Women (Protection of Rights on Divorce) Act, 1986." 5. By the impugned order learned Magistrate after hearing the parties held that in the written statement the petitioner has not been able to give the date when the divorce took place nor the place of divorce has been mentioned. Even the name of the witnesses before whom the divorce took place has not been mentioned. In that view of the matter, he held that the petitioner could not prove that he had divorced the opposite party. Even the name of the witnesses before whom the divorce took place has not been mentioned. In that view of the matter, he held that the petitioner could not prove that he had divorced the opposite party. According to him The Muslim Women (Protection of Rights on Divorce) Act, 1986 gives only protection to the divorced muslim women. As the petitioner could not prove the divorce, therefore, the present proceeding would continue as per the provision of section 125 of the Code of Criminal Procedure. The present re vision petition has been filed against the aforesaid order. 6. The learned counsel appearing for the petitioner submitted that the learned Magistrate has erred in law in holding that the petitioner could not prove that he had divorced the opposite party. According to him even if no date of divorce was mentioned in the written statement, it was incumbent upon the court below to accept the date of divorce from the date of the written statement. In other words the written statement in the present case was filed on 28.2.86 and therefore, in any case the divorce would be effective from the date of filing of the written statement. The learned counsel further submitted that the moment it is held that the opposite party is a divorced woman, the present proceeding under section 125 of the Criminal Procedure Code shall have to be disposed of in accordance with the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. 7. Learned counsel appearing for the opposite party submitted that the statement made with regard to the alleged divorce in the show-cause should not be treated to be a declaration by the petitioner for divorce. The statement is very cryptic and has been made only in order to defeat the provisions of section 125 of the Code of Criminal Procedure. He has further submitted that in the petition under section 125 of the Code of Criminal Procedure the opposite party has also claimed for payment of maintenance on behalf of her son. Therefore, in any view of the matter, the proceeding is bound to continue under the aforesaid provision. No relief, whatsoever can be granted to the son of the opposite party under the provision of The Muslim Women (Protection of Rights on Divorce) Act, 1986 nor the transitional provision of the aforesaid Act, bars continuance of such proceeding. 8. Therefore, in any view of the matter, the proceeding is bound to continue under the aforesaid provision. No relief, whatsoever can be granted to the son of the opposite party under the provision of The Muslim Women (Protection of Rights on Divorce) Act, 1986 nor the transitional provision of the aforesaid Act, bars continuance of such proceeding. 8. Now it has to be seen as to whether in the facts and circumstances mentioned above, the petitioner has been able to prove that he had divorced the opposite party. The next question is as to what would be the legal effect of the statement of the petitioner made in his written statement that he had already divorced his wife. Amongst the several judgments referred in this case reference can be made to cases of "Chand bai-Vrs-Bandesa Mujawar" (1961 Bombay 121) AND "Whab Alli. Vrs Qmro Bi and Ors" (1951 Hydrabad 117). In the aforesaid cases it has been held that in a case of maintenance, filed under the provisions of the Code of Criminal Procedure by a Mohammadan wife if the husband files a written statement to the effect that he had already divorced the wife about 30 years ago the statement, even if the fact of such divorce is not proved, operates as a declaration of divorce as from the date of written statement. 9. On this point, reference may be made to Macnaghten's Moohummadan Law, 4th Edition. P 296, where the learned author under case No. XLII has set out the question as well as the answer in the following form: "A person on the 29th of Suffur in the year 132 Hijree (corresponding with the 7th pous of 1224, B.S.) declared that he bad repudiated his wife by three divorces, agreeably to the rules of the Moohumdan Law, from the year l178 or upwards of forty-six years back. In this case, from what date should the divorce be held to take effect? R. Under the above circumstances, if the wife deny the fact of her having been divorced by the husband; the divorce according to Law, Should be held to take effect from the date on which it was declared as is laid down in the Shurhi Vicaya. In this case, from what date should the divorce be held to take effect? R. Under the above circumstances, if the wife deny the fact of her having been divorced by the husband; the divorce according to Law, Should be held to take effect from the date on which it was declared as is laid down in the Shurhi Vicaya. "If a person say to his wife, whom be married previously to the day to which he referred the divorce' you are divorced yesterday; and she deny it, the divorce takes effect only from the moment of its being declared". Reference may also be made to Syed Ameer Ali's Mahomedan Law, 5th Edition, page 479. The learned author dealing with "Capacity for talak" observes as follows:- "According to the Hanafi doctrines, although an acknowledgment of a talak, namely an acknowledgment by a man that he had divorced his wife, extracted from him under compulsion, is ineffective, talak actually pronounced under compulsion is valid... ... Whilst an acknowledgment extracted from the husband by compulsion whether embodied in writing or not is ineffective, an acknowledgment of talak made in jest or falsely will take effect "Judicially" though it will not have any force in fore conscientiae... .... . .." These passages make it clear that although a Mahomedan may fail to prove the allegation that he had divorced his wife some years ago, nevertheless, the statement made by him to the effect that he had so divorced his wife, even if it be false would operate as an acknowledgment of the divorce by him or at any rate also a declaration of divorce as from the date on which the statement was made. It has to be held that the statement in the written statement was acknowledgment of divorce and the same would be effective from the date on which petitioner filed written statement namely, 28.2.1986. In this view the court below is not justified in holding that since no date and place of divorce was mentioned in the show cause, the petitioner could not prove that he had divorced the opposite party. 10. In this view the court below is not justified in holding that since no date and place of divorce was mentioned in the show cause, the petitioner could not prove that he had divorced the opposite party. 10. Now I would proceed to consider as to whether in view of the commencement of The Muslim Women (Protection of Rights on Divorce) Act, 1986 the present proceeding, which was pending on such date, can be disposed of under the provisions of section 125 of the Code of Criminal Procedure. The present proceeding was initiated on 13.11.85 when the opposite party' filed the petition. The Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force on 19th May, 1987 after receiving the assent of President of India, which was published in the Gazette of India extra ordinary part-no The scheme of The Muslim Women (Protection of Rights On Divorce) Act, 1986 is complete in seven sections. The main object of The Muslim Women (Protection of Right, on Divorce) Act, 1986 is to protect the rights of muslim women, who have been divorced by, or have obtained divorce from, their husbands. 11. Section 5 of The Muslim Women {Protection of Rights on Divorce) Act, 1986 prescribes that the parties may opt to be governed by the provision of sections 125 (2) and 128 of the Code of Criminal Procedure and also provides the procedure to be followed for such option, i.e., to file such affidavit or declaration in this regard to the Court, hearing the application under sub-section (2) of section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986. 12. Section 7 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 is the transitional provision, which runs as follows: "7. Transitional provisions:- Every application by a divorced women 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, not withstanding any thing 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". 13. 13. From bare reference to the transitional provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986 it is clear that every application tiled 'under section 125 of the Code of Criminal Procedure by a divorced woman, pending before the Magistrate on the day of the commencement of The Muslim Women (Protection of Rights on Divorce) Act, 1986. shall be disposed of by such Magistrate in accordance with the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Magistrate will have no jurisdiction to dispos6 of the proceeding pending under the provisions of section 125 of the Code of Criminal Procedure. There appear to be no conflict to be resolved between these two Acts, i.e., the Criminal Procedure Code as also The Muslim Women (Protection of Right on Divorce) Act, 1986. More or less these two laws are operating in the same field. However, when two or more laws operate in the same field and each contains a non-obstinate clause, stating that its provision will override those of any other laws cases of such conflict have to be deciding by reference to the object and purpose of the laws under consideration. For resolving even there is inter se conflict, a reference can be made to the ratio decided in the case of Shrawan Singh and another-Vrs- Kasturi Lal (A.I.R. 1977 S.C. 265). It has been held that in such a situation the later enactment must prevail over the earlier one. 14. I have already held that the status of the opposite party is of a divorced woman with effect from 28.2.86. Therefore, the learned Magistrate can decide the case and quantum of maintenance as per the provision of section 125 of the Code of Criminal Procedure, only for the period lying between 13.11.85, the date of filing of the petition to 28.2.86, the date on which the declaration for divorce was made in the written statement. 15. Now the question arises as to what would be the fate of the son of the opposite party on whose behalf also the proceeding was, initiated for payment of maintenance under section 125 of the Code of Criminal Procedure along with that opposite party. 15. Now the question arises as to what would be the fate of the son of the opposite party on whose behalf also the proceeding was, initiated for payment of maintenance under section 125 of the Code of Criminal Procedure along with that opposite party. From a bare reference of the provisions of The Muslim Women (Protection of Rights on Divorce) Act, 1986 it appears that it gives only protection to the rights of divorced muslim women Section 7 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 which is the transitional provision, only bars the continuance of the proceeding under section 125 of the Code of Criminal Procedure filed by a divorced woman. No bar or any other provision has been made under The Muslim Women (Protection of Rights on Divorce) Act, 1986 which can prohibit a Magistrate from disposing of a proceeding under section 125 of the Code of Criminal Procedure, made by or on behalf a child Section 7 of The Muslim Women (Protection of Right on Divorce) Act, 1986 does not repeal or affect in any manner the provision of section 125 of the Code of Criminal Procedure, if an application for payment of maintenance has been made Oil behalf of the child. Thus in this view of the matter, the proceeding for the payment of maintenance to the son of the opposite party will continue and shall have to be disposed of as per the provision of section 125 of the Code of Criminal Procedure. 16. In the result, the revision petition partly succeeds and-the impugned order of the learned. Magistrate is set aside. The case is remanded back to the Judicial Magistrate for disposal in accordance with the observations and directions made above. Since the proceeding was instituted as back as on 13.11.85, the learned Magistrate will take all possible steps so that, it can be disposed of within a period of four months from the date of the production of this order. Application allowed in part.