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Allahabad High Court · body

2001 DIGILAW 683 (ALL)

KAMAL UDDIN v. RAISA BEGUM ALIAS,munni

2001-07-13

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS revision has been directed against the order dated 4-8-1989, passed by Special Judge/addl. Sessions Judge, Hamirpur in Criminal Revision No. 129 of 1988, allowing the revision and setting aside the order dated 6-9-88, passed by the Magistrate and directing the Magistrate to ensure that the maintenance allowance of Rs. 130. 00 per month to the opposite party No. 1 be paid regularly in the light of observation made by this Court in order dated 21-7-86 in Criminal Misc. Case No. 8812 of 1986. ( 2 ) THE facts giving rise to this revision are that the applicant and respondent No. 1 are husband and wife respectively. The wife respondent No. 1 moved an application under Section 125, Cr. P. C. against the applicant before the Magistrate for grant of maintenance allowance at the rate of Rs. 250. 00 per month. The applicant challenged the above order in a revision before the Sessions Judge, the same was dismissed on 24-4-86. Thereafter the applicant moved this Court in a petition under Section 482, Cr. P. C. (Criminal Misc. Application No. 8812 of 1986 ). In the above petition it was contended that the opposite party No. 1 was a divorced Mohammadan woman and, therefore, was not entitled to receive maintenance allowance with effect from the date of passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This Court observed that an identical question was raised by the petitioner in execution proceedings pending before the Magistrate who had accepted the contention and has held that divorced Mohammadan woman is not entitled to get maintenance allowance on the basis of those orders from the date of commencement of the Act. That the above order of the Magistrate in execution proceedings will there (sic) considered and determined in the revision filed by the wife and it was not necessary to determine the said question in the above proceedings under Section 482, Cr. P. C. with the above observation the petition was dismissed, vide order dated 1-2-89. ( 3 ) IT appears that during pendency of the petition under Section 482, Cr. P. C. before this Court, the wife opposite party No. 1 moved an application under Section 128, Cr. P. C. for realisation of maintenance allowance from 1-7-1987 up to the date of application at the rate of Rs. 250. 00 per month. ( 3 ) IT appears that during pendency of the petition under Section 482, Cr. P. C. before this Court, the wife opposite party No. 1 moved an application under Section 128, Cr. P. C. for realisation of maintenance allowance from 1-7-1987 up to the date of application at the rate of Rs. 250. 00 per month. In the said case, the applicant raised objection that he had divorced the opposite party No. 1 in the year 1983 and therefore, she being a divorced wife was not entitled to maintenance allowance after enforcemeent of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called the Act of 1986 ). The learned Magistrate on hearing counsel for the parties held that it has been proved that the applicant divorced the opposite party No. 1 on 20-1-1984 and, therefore, her right to recover the maintenance allowance were effective only up to 19-5-1986, before the date of enforcement of the Act of 1986. Consequently upon the enforcement of the Act of 1986, the opposite party 1 was not entitled to any maintenance allowance thereafter. With this observation he rejected the application. ( 4 ) THE opposite party No. 1 filed Criminal Revision No. 129 of 1988 against the above order of the Magistrate and the learned Sessions Judge on hearing learned Counsel for the parties and relying on Single Bench decision of this Court in Mohd. Azizur Rehman Khan v. Smt. Ibrat Arareported in 1989 Lucknow Criminal Reports 7, held that the rights which had already been acquired by the wife and that had consequent to her under provisions of Cr. P. C. would not come to an end just by passing of the Act of 1986 and the right which had accrued and become vested continued to be capable of being enforced notwithstanding that the repeal of the statute under which that right accrued unless repealing statute has taken away such right expressly or impliedly. With this observation he allowed the revision of opposite party No. 2, set aside the order of the Magistrate dated 6-9-88 and directed the Magistrate to ensure that maintenance allowance of Rs. 130. 00 per month order passed by this Court on 21-7-86 in Criminal Misc. Application No. 8812 of 1986. ( 5 ) THE above order of the Sessions Judge has been challenged in this revision. 130. 00 per month order passed by this Court on 21-7-86 in Criminal Misc. Application No. 8812 of 1986. ( 5 ) THE above order of the Sessions Judge has been challenged in this revision. ( 6 ) I have heard Shri M. A. Islam learned Counsel for the applicant and learned AGA as none appeared from the side of opposite party No. 1. ( 7 ) IT is not disputed that the applicant and opposite party No. 1 were the husband and wife respectively. It is also not disputed that the opposite party No. 1 was divorced during pendency of the application under Section 125, Cr. P. C. before the Magistrate. It is also not disputed that the opposite party No. 1 had not remarried. Under Section 125, Cr. P. C. even a divorced wife if not remarried is entitled to maintenance allowance as the definition of "wife" given in Explanation (b) to Section 125, Cr. P. C. includes a woman who has been divorced by her husband or has obtained a divorce from her husband and has not remarried. ( 8 ) THE contention of her learned Counsel for the applicant was that with effect from 19-5-1986 the Act of 1986 came into force and, therefore, after enforcement of the Act of 1986 a divorced Muslim woman was not entitled to recover the maintenance allowance from her husband. Having gone through the relevant provisions of the Act of 1986, I find no force in the above contention. The applicability of the Act of 1986 was considered by this Court in case of Mohd. Azizur Rehman Khan v. Smt. Ibrat Ara 1989 Lucknow Criminal Report, 7 and it was held that the Act of 1986 does not provide any procedure for setting aside an order of maintenance or order on the application under Section 127, Cr. P. C. that has already been passed before the Act of 1986 came into force. This Act does not say that any decree or order of the Court or order of maintenance passed in favour of Muslim Woman will become void, or will be revised in accordance with the provisions of the Act or 1986. So the Act of 1986 does not disturb existing or accrued rights that were there on the date of the passing of the Act of 1986, except to the extent specifically provided in Section 7. So the Act of 1986 does not disturb existing or accrued rights that were there on the date of the passing of the Act of 1986, except to the extent specifically provided in Section 7. The above decision of single Judge was affirmed by a subsequent decision of Division Bench of this Court in Smt. Shamim Bano v. Mohd. Ismail, 1992 JIC 828 . In the said case the Division Bench of Lucknow Bench of this Court held that none of the sections of the Act of 1986 contain non obstante clause "notwithstanding 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 maintenance made in favour of the appellant has become inexecutable from the date of enforcement of Act of 1986. Sections 3 and 4 do contain non obstante clause, but they do not supersede judgment, decree or order of a Court. Section 3 opens with the words "notwithstanding any thing contained in any other law for the time being in force". The term law used here obviously means law made by the Legislature and not judgment, decree or order of Court. The non obstant clause in Section 4 reads "notwithstanding any thing contained in the foregoing provisions of this Act or any other law for the time being in force. " In view of this non obstante 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. The non obstante clause do not supersede the order of maintenance passed under Section 125 (1), Cr. P. C. ( 9 ) IT was further held that there are other provisions in the Act of 1986, which show that the Parliament never intended to nullify an order of maintenance made under Section 125 (1), Cr. P. C. Section 5 of the Act of 1986 preserves the provisions of Sections 125 to 128 of the Code for Muslims. . . . . . P. C. Section 5 of the Act of 1986 preserves the provisions of Sections 125 to 128 of the Code for Muslims. . . . . . If the applicability of these provisions to Muslims has been specifically perversed there is no occasion to treat the order passed under Section 125 (1) prior to enforcement of Act of 1986 as inexecutable on the mereapplication of the husband against whom the order is operating, when no provision to that effect has been made in the Act itself. Considering the effect of transitory provision contained in Section 7 of the Act of 1986 it was held that this section also does not say any thing regarding the order of maintenance already passed before the commencement of the Act of 1986. ( 10 ) IN the result the order passed under Section 125 (1), Cr. P. C. prior to the enforcement of Act of 1986 had not been affected or cutrailed in any way and those orders will operate. Thus, it was rightly held by the learnd Addl. Sessions Judge that order of maintenance passed earlier is executable. ( 11 ) THEREFORE, the revision has no force. ( 12 ) THE revision is accordingly dismissed and it is made clear that the learned Magistrate shall ensure the payment of maintenance allowance to the opposite party No. 1 at the rate of Rs. 250. 00 per month as the interim order dated 21-7-86, passed by this Court in Criminal Misc. Case No. 8812 of 1986 stood vacated when the above petition was finally disposed of on 1-2-1989. Revision dismissed. .