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Allahabad High Court · body

1991 DIGILAW 1222 (ALL)

SHAMIM BANO v. MOHD ISMAIL

1991-09-23

R.K.AGRAWAL, S.C.MATHUR

body1991
S. C. MATHUR, J. This First Appeal under Section 19 of the Family Courts Act, 1984 (Act No. 66 of 1984) is directed against the judgment and order dated 10th March, 1987 passed by the learned Judge, Family, Court, Luck now refusing to execute the order of maintenance passed in favour of the appellant against the first respondent in proceedings under Section 125 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), for short Code, for the period subsequent to May 18,1986 in view of the enforcement of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986), for short 1986 Act, with effect from 19th May, 1986. 2. The facts which are not in dispute are as follows: "the appellant and the first respondent were wife and husband. They are Muslim by religion. There was divorce between the two. The appellant claimed maintenance from the first respondent under Section 125 of the Code which was granted to her by order dated 11th February, 1977. The maintenance allowance was fixed at Rs. 60 per month. The first respondent committed default in payment of the monthly maintenance which led to the % filing of application under Section 125 (3) of the Code by the appellant against the first respondent. Through this application she claimed recovery of maintenance allowance for the period 11th September, 1985 to 10th August, 1986. During the pendency of this application 1986 Act was enforced with effect from 19th May, 1986. In view of the enforcement of the Act the first respondent pleaded that since the appellant had been divorced by him he was not liable to maintain her and to pay her maintenance. The Court below upheld the plea and directed recovery of arrears of main tenance allowance, only for the period 11th September, 1985 to 18th May, 1985. The learned Judge refused to recover the amount falling due from 19th May, 1985. " 3. The submission of the appellants learned counsel is that a judgment, decree or an order of Court of law does not get automatically nullified by enforcement of an Act passed by the Legislature and that the Act itself must contain a specific provision superseding such judgment, decree or order. " 3. The submission of the appellants learned counsel is that a judgment, decree or an order of Court of law does not get automatically nullified by enforcement of an Act passed by the Legislature and that the Act itself must contain a specific provision superseding such judgment, decree or order. It is pointed out that 1986 Act has not been given retrospective operation and it does not contain any provision superseding or making ineffective an order of maintenance already passed under Section 125 (1) of the Code. 4. Section 125 (1) of the Code authorises the Court to pass an order of maintenance upon proof of neglect or refusal to maintain by the person liable to maintain the applicant. Sub-section (3) provides for enforcement of the order of maintenance in the event of its non-compliance. Under this provision the Court is authorised to realise the amount due in the same manner as a fine is realised. In view of the first proviso to this sub-section the Court will proceed to recover the amount only when an application is made in that behalf. The second proviso to this sub-section and sub-section (5) prescribe situations under which the Court may refuse to proceed with recovery of the amount due. The situation contemplated by the second Proviso is unreasonable refusal by the wife to live with the husband despite offer by the latter to maintain the former on condition of her living with him. Under sub-section (5) the Court has to cancel the order of maintenance if it is established before it that the wife in whose favour order of maintenance had been passed is living in adultery or is, without sufficient reason, refusing to live with her husband or that the husband and wife are living separately by mutual consent. Section 127 (1) provides for alteration in the quantum of allowance awarded earlier on proof of a change in the circumstances of either the person paying the allowance or the person receiving the same. Under sub- section (2) the court is authorised to vary or cancel its earlier order of maintenance if that is warranted in consequence of any decision of a competent Civil Court. Under clause (a) of sub-section (3) the Court has to cancel the order of maintenance made earlier if the woman, after being divorced, remarries. Under sub- section (2) the court is authorised to vary or cancel its earlier order of maintenance if that is warranted in consequence of any decision of a competent Civil Court. Under clause (a) of sub-section (3) the Court has to cancel the order of maintenance made earlier if the woman, after being divorced, remarries. Clause (b) of this sub-section reads as follows: 127 (3) (b) "the woman has been divorced by her husband and that she has received whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, - (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman the above are the only situations prescribed by the Code under which maintenance granted earlier may be varied or cancelled. In each situation an order of the Court is required. The order of maintenance does not get automatically varied or cancelled. The court below has not relied upon any of the above situations for nullifying the maintenance order, passed in favour of the appellant with effect from May 19, 1986. Our attention has not been invited to any other provisions of the Code under which the order of maintenance gets varied or nullified by mere enforcement of a subsequent legislation. 5. Judgments and orders of the Courts of law remain valid till they are set aside or superseded by the same Court on review or by superior Courts on appeal, revision or on any other proceeding allowed by law. They can also be superseded by legislative fiat, as the power of Legislature to legislate is plenary and is subject only to the limitations laid down in the Constitution. In the case on hand the order of maintenance has not been set aside by the same Court on review. In the present case the Judge Family Court will have to be treated as the Court which passed the order of maintenance. In the case on hand the order of maintenance has not been set aside by the same Court on review. In the present case the Judge Family Court will have to be treated as the Court which passed the order of maintenance. That Court has not cancelled the order of maintenance it has simply refused its execution on the supposition that the order of maintenance has become nonest on the enforcement of 1986 Act. We have, therefore, to see whether under the provisions of the 1986 Act the order of maintenance passed under Section 125 (1) of the Code is-rendered inexecutable with effect from the date of its enforcement. 6. 1986 Act was published in the Gazette of India on May 19, 1986. It does not mention any date of its commencement or enforcement. It shall, therefore, be deemed to have come into force on May 19, 1986. The Act is a short one, containing in all seven sections. Section 1. contains the title and mentions the territorial extent of its applicability. Section 2 contains definitions Section 3 deals with mahr and other properties of Muslim woman to be given to her at the time of divarce. Section 4 deals with order for payment of maintenance and Section 5 deals with option to be governed by the provisions of Sections 125 to 128 of the Code. Section 6 confers power on the Central Government to frame rules and Section 7 contains transitional provisions. None of these sections contains the non-obstante clause "not withstanding any judgment, decree or order of a Court of law". In the absence of such a clause it is not possible to hold that the order of mainte nance made in favour of the appellant has become insxecutable from the date of enforcement of 1986 Act. 7. Sections 3 and 4 do contain non-obstante clauses but they do not supersede judgment, decree or order of any Court. Section 3 opens with the words "notwithstanding anything contained in any other law for the time being in force". The term law used here obviously means law made by Legislature and not judgment, decree or order of Court. The non-obstantate clause in Section 4 reads "notwithstanding anything contained in the fore going provisions of this Actor in any other law for the time being in force". The term law used here obviously means law made by Legislature and not judgment, decree or order of Court. The non-obstantate clause in Section 4 reads "notwithstanding anything contained in the fore going provisions of this Actor in any other law for the time being in force". In view of this non-obstantate clause the provisions of Section 4 prevail over earlier provisions of the same Act and also over the provisions of any other enactment in force. These non-obstantate clauses do not supersede the order of maintenance passed under Section 125 (1 ). 8. There are other provisions in 1986 Act which show that the Parlia ment never intended to nullify an order of maintenance made under Section 125 (1) of the Code. Section 5 of the Act preserves the provisions of Sections 125 to 128 of the Code for Muslims. It is permissible under this section for Muslim former husband and the Muslim divorced woman to opt to be governed by the provisions of Sections 125 to 128 of the Code. If the applicability of these provisions to Muslims has been specifically preserved, there is no occasion to treat the order passed under Section 125 (1) prior to the enforcement of 1986 Act as inexecutable on the mere application of the husband against whom the order is operating, when no provision to that effect has been made in the Act itself. 9. Section 7 is a transitory provision and applies to applications under Section 125 or 127 of the Code "pending" on the commencement of the Act. If the parties do not exercise option under Section 5 to be governed by the provisions of Sections 125 to 128 of the Code, such pending applications are to be disposed of in accordance with the provisions of 1986 Act. This section also does not say anything regarding the order of maintenance already passed before the commencement of the Act. 10. In taking the above view we have the support of decisions of our own High Court as well as of Gujarat High. Court In Criminal Misc. Case No. 2662 of 1981 Mohd. Azizur Rahman Khan v. Smt. Ibrat Ara, decided on 30th September, 1988 the husband against whom maintenance had been allowed on 24th October, 1978 sought to disclaim his liability after the divorce with his wife on the basis of 1986 Act. Court In Criminal Misc. Case No. 2662 of 1981 Mohd. Azizur Rahman Khan v. Smt. Ibrat Ara, decided on 30th September, 1988 the husband against whom maintenance had been allowed on 24th October, 1978 sought to disclaim his liability after the divorce with his wife on the basis of 1986 Act. The learned single Judge of this Court negatived the plea and relied upon Section 6 of the General Clauses Act which provides that where any Central Act repeals and enactment the repeal shall not affect any right acquired under the enactment so repealed It was observed that the divorced woman had acquired right, under the provisions of the Code and that was not specifically nullified by 1986 Act and, therefore, the former husbands plea of disclaimer could not be upheld. 11. In Arab Ahemadhia Abdulla and etc. v. Arab Bail Mahmuna Saiyadbhai and others etc. , AIR 1988 Guj 141 it has been observed in paragraph 34 of the report as follows: "34. Next it was contended that in view of the provisions of Muslim Women Act, the orders passed by the Magistrate under Section 125 of the Cr. P. C, are non-est. This submission is also without any substance. 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 women is passed, then her rights are crystalized 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 Muslim Women 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 crystalized before the passing of the Act. " 12. The court below, even after rightly observing that a person cannot be deprived of vested right and that there was no provision in the Act which curtailed that right, proceeded to confine the appellants claim only upto the date of enforcement of 1986 Act. " 12. The court below, even after rightly observing that a person cannot be deprived of vested right and that there was no provision in the Act which curtailed that right, proceeded to confine the appellants claim only upto the date of enforcement of 1986 Act. The logic which impelled the learned Judge to confine the executability of the order of maintenance upto that date is not discernible from the judgment under appeal. For the reasons already recorded we are unable to uphold the judgment of the Court blow when it. denies executability of the maintenance order after 18-5-1986. 13. In view of the above, the appeal is allowed and the judgment and order of the learned Judge, Family Court, Lucknow to the extent it denies execution of the maintenance order with effect from 19th May, 1986 is hereby set aside. The learned Judge, Family Court, Lucknow, shall re-admit the appellants application toils original number and proceed to dispose of the same in accordance with law taking into account the observations made here-inabove. There shall be no order as to costs. Appeal allowed. .