1994 ALLMR ONLINE 2217
Madras High Court

RENGASAMY, J.

Mrs. Nazimunnissa Begum vs. Abdul Majeeth

Petitioner Counsel: Hajee P. K. Jamal Mohamed, for
Respondent Counsel: A. Sirajudeen, .

Muslim Women (Protection of Rights on Divorce) Act (1986), S. 3 - Criminal P.C. (1973), S. 125 - Evidence Act (1872), S. 115

ORDER :-This revision is against the order of the learned Principal Sessions Judge, Trichy, in Crl. R.C. No. 8 of 1992 setting aside the order of the learned Judicial Magistrate No. VI, Trichy in Crl. M.P. No. 4728 of 1990 in the petition filed under Section 128 Code of Criminal Procedure.

2. The parties are Muslims. The revision petitioner was married to the respondent herein in 1978 and the respondent is said to have divorced the petitioner according to Muslim law by pronouncing Talaq in 1985 and also has married a second wife in September 1985. The petitioner filed the petition M.C. No. 12 of 1985 on the file of the judicial Magistrate VI, Trichy, under Section 125 Code of Criminal Procedure for maintenance. The learned Magistrate passed the order on 23-5-1986 allowing the petition for payment of maintenance by the respondent herein at the rate of Rs. 250/- per month. It is pertinent to mention that the Muslim Women (Protection of rights on Divorce) Act, 1986, (hereinafter to be referred to as Act, 1986) came into force on 19-5-1986 and the order of the learned Magistrate was pronounced four days after the commencement of this Act. The revision against the order of the learned Magistrate awarding maintenance was also dismissed by the Sessions Court, Trichy. Thereafter, she filed execution petition No. 5 of 1987 and realised some amount towards the arrears of maintenance. Subsequently after 3 years, she filed another petition Crl. M.P. No. 4728 of 1990 for the arrears of maintenance under Section 128 Code of Criminal Procedure and it was only at that time the respondent herein contended that under the new Act, 1986, he was not liable to pay maintenance to his former wife, the revision petitioner, and the petition was not maintainable. The learned Magistrate rejected his contention and ordered for the payment of the arrears of the maintenance amount. On revision before the Sessions Court, Trichy, the learned Sessions Judge, accepting the contention of the respondent herein, dismissed the petition under Section 128, Code of Criminal Procedure as it was not maintainable in view of Sections 3, 4 and 5 of the Act, 1986. Hence, this revision has been filed.

3. The learned counsel for the revision petitioner contended that though the order of the learned Magistrate in M.C. No. 12 of 1985 was passed subsequent to the commencement of the Act, the respondent herein did not object for passing the orders under Section 125 Code of Criminal Procedure and subsequently when the first execution was taken up in E.P. No. 5 of 1987 also, the respondent did not object for the maintainability of the petition and therefore, now, he cannot seek umbrage under the new Act to avoid the payment of the maintenance. The learned counsel has cited series of decisions to show that the revision petitioner is entitled to enforce the order passed in M.C. No. 12 of 1985 under Section 125, Code of Criminal Procedure as the order has already come into effect.

4. The first decision relied upon by him is Sirajudeen v. State, 1968 Cri LJ 493 : (AIR 1968 Madras 117) a Division Bench case of this Court, in which it is observed that the provisions of the procedural laws are designed to subserve the ends of justice and not to frustrate them and the object of the Act is to be implemented. It is observed in that decision as follows : (at Pp. 131 and 132 of AIR)

According to the leaned counsel Mr. Jamal Mohammed as Section 125 Code of Criminal Procedure is to provided relief to a deserted woman, either divorced of undivorced, the object of this provision cannot be defeated by a contention that the petitioner

herein is not entitled to the maintenance for the reason that she is a divorced woman. As the contention of the respondent is that under the new legislation, the divorced wife is not entitled to claim maintenance from her former husband for the period beyond the Iddat, if the special enactment is applicable to Muslim divorced women, the object of the special enactment alone has to be taken into consideration. The learned counsel Mr. Sirajudeen appearing for the respondent, contended that under the Act, 1986, Section 3 is having the overriding effect of the other enactments and under this Section, a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance from her former husband within the Iddat period, that is three lunar months, after the divorce and for the period beyond the Iddat period, Section 4 of the Act governs to provide her maintenance by her close relatives, who will be entitled to her property after her life-time, or her children, and in the absence of those persons or on their incapacity, the State Wakf Board has to provide the maintenance. The learned counsel Mr. Sirajudeen further contended that under Section 7 of the Act, every application under Section 125 or 127 of the Code, pending before the Magistrate, on the date of commencement of the Act, 1986 should be disposed of in the manner stated by Section 5 of the Act, which reads that if a petition was filed under Section 3(2) of the Act by a divorced woman, if both the parties either jointly or separately, filed affidavit or declaration preferring to be governed by the provisions of Sections 125 to 128 the Code, the Magistrate shall dispose of such application accordingly, but in this case though on the date of the commencement of the Act, the petition filed under Section 125 of the Code was pending, such consent was not obtained by the learned Magistrate and therefore the order passed by him under Section 125, Code of Criminal Procedure is not binding upon the respondent. Before I proceed to consider the stand taken by the learned counsel for the respondent, I shall refer to the other decisions cited by the learned counsel for the revision petitioner.

5. The learned counsel refers to a decision in Chotalal v. Ram Golam, AIR 1975 Cal 436 which refers to the waiver of the rights by a party. It is observed in the decision that even if there is any mandatory provision which confers any right or privilege or advantage to any of the parties to the litigation, such right, privilege or advantage might be waived by a party in whose favour the provision of law stands and the party having such right or privilege, has a discretion to exercise his right or waive it. On the basis of this decision, it is contended by the learned counsel for the revision petitioner that as the respondent has not filed any objection for the enquiry under Section 125 Code of Criminal Procedure, it has to be taken that he had waived the right provided to him under Section 5 of the Act and now he is not entitled to object of the order passed under Section 125 of the Code. The learned counsel refers to a series of decisions as to the effect of the order passed under Section 125 Code of Criminal Procedure, thought the Act, 1986 came into force in the year 1986. In Shamsudeen v. Sabhiya 1988 Mad LJ (Crl) 377, the Bench of the Kerala High Court has held that the Act, 1986, does not contain any provision enabling reopening of orders passed under the provisions of the Code which have become final. The Kerala Bench has further observed that the mere change of law cannot lead to alteration or cancellation of the orders passed under the Code which have become final and Section 127 of the Code cannot be invoked to tamper or interfere with the maintenance orders on ground outside the framework of Section 127, or to bring orders which became final prior to the Act, 1986. In Hazran v. Abdul Rehman 1989 Cri LJ 1591 also the Punjab and Haryana High Court has taken the view that there is no provision whatsoever with regard to the enforcement of an order of maintenance which has already become final under the Code and the provisions with regard to the enforcement of such orders contained in the Code, holds good even after coming in to force of the Act, 1986. In M. A. Hameed v. Arif Jan 1990 Cri LJ 96, a single Judge of the Andhra Pradesh High Court has taken the same view that the right conferred on a divorced Muslim woman is not taken away by the Act and she is entitled to claim maintenance. In Abdul Khader v. Razia Begum, 1991 Cri LJ 247, the Karnataka High Court also has expressed its view that the provision of the Act cannot defeat the vested rights acquired by the wife to recover maintenance from the husband under the order awarding maintenance before the commencement of the Act, 1986, and the right that had stood crystallised before the new Act, 1986, cannot be defeated by the new Act. One more decision cited by the learned counsel for the petitioner is Bashir Khan v. Jamila Bee, 1994 Cri LJ 361, a decision of the Madhya Pradesh High Court, in which the maintenance was ordered even after the commencement of the Act, 1986. But in that case, the petitioner was not divorced on the date of the petition and therefore the Court has found that as she was not a divorced woman, the Act had no application and she was entitled to claim maintenance. In all the other decisions cited above, the order of maintenance

was passed prior to the commencement of the Act, 1986. Therefore the Courts have held that when already order had been passed awarding maintenance to a divorced woman, the right that had vested on her cannot be negatived by the commencement of the Act, 1986. Once the order of maintenance was granted under Section 125 of the Code of Criminal Procedure, then the enforcement alone comes under Section 128, Code of Criminal Procedure. But under Section 7 of the Act, transitional provision is made only for Section 125, or Section 127, Code of Criminal Procedure, which was pending before the Magistrate on the commencement of the new Act. Therefore, the Courts have taken the view that the order that was in force cannot be altered by the new Act. However, Section 5 of the Act, 1986, makes it mandatory to obtain the consent of the former husband for the proceedings under Section 128, Code of Criminal Procedure also. But in this case we need not probe into the question whether the petition under Section 128, Code of Criminal Procedure is maintainable because the order passed under Section 125 of the Code itself is after the commencement of the Act, 1986.

6. The learned counsel Mr. Jamal Mohammed referred to a decision of Andhra Pradesh High Court in Md. Tajuddin v. Quamarunisa Begum, 1989 Cri LJ 2285, which is a decision of a single Judge, taking the view that the maintenance to be awarded under Section 3(1)(a) of the Act does not confine to the iddat period only and it can be granted for the subsequent period also. But the Full Bench of the same High Court in Usman Khan v. Fathimunnisa Begum, 1990 Cri LJ 1364 : (AIR 1990 Andh Pra 225) has taken the view that the liability of the husband under Section 3(1)(a) of Act to pay maintenance, is confined only for the period of iddat, i.e. 3 months.

7. The learned counsel Mr. Sirajuddin argued that when the petition under Section 125 of the Code filed by the petitioner before the learned Magistrate was pending enquiry even after the commencement of the Act, it was the duty of the trial Court to exercise the powers under Section 5 of the Act, to find out the preference of the parties, either to be Governed by the provisions of Section 125 of the Code or to confine the relief under Section 3(1) of the Act and as the orders have been passed without ascertaining the intention of the parties, the order is not binding upon the respondent and therefore the order cannot be enforced under Section 128 of the Code. On the other hand, as mentioned above, the learned counsel for the petitioner Mr. Jamal Mohammed argued that when the respondent has not expressed his objection for the enquiry under Section 125 of the Code, he had waived the right given to him under Section 5 of the Act and therefore, he is bound by the order of the learned Magistrate. Section 5 of the Act reads as follows :-

If, on the date of the first hearing of the application under Sub-Section (2) of Section 3, a divorced woman and her husband declare, affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Criminal Court hearing the application, the Magistrate shall dispose of such application accordingly.

Under Section 7 of the Act, the pending proceedings shall be subject to the provisions of Section 5 of the Act. Therefore the petition filed under Section 125 of the Code has to be treated as a petition filed under Section 3 of the Act. Under Section 5 of the Act, when a petition has been filed by the divorced woman formaintenance, the former husband shall declare his preference in writing either to be governed by the provisions of Section 125 of the Code and only on filing of such a declaration, the Magistrate shall dispose of the application accordingly. The Section is very clear that only if the former husband agrees in writing for proceeding with the enquiry under Section 125 of the Code, the petition shall be disposed of accordingly. Otherwise, the enquiry cannot be under Section 125 of the Code. It is not the case of the petitioner that the respondent had given his consent in writing or participated in the enquiry. It appears that when the petition was reserved for orders, the Act came into force and the learned Magistrate, without resorting to Section 5 of the Act to ascertain the willingness of the parties, had pronounced the orders. As the order was passed under Section 125 of the Code without obtaining the necessary consent of the husband in writing with regard to his preference to be governed by the provisions of Section 125 of the Code, certainly the order of the learned Magistrate will not be binding upon the respondent. For this reason, even if he had paid some amount in the first execution petition, he

is not estopped from contending that the order is not binding upon him. As this order of the learned Magistrate has come subsequent to the commencement of the Act, the decisions relied upon by the learned counsel for the revision petitioner, are not applicable.

8. A Divisions Bench of this Court in Haja Mohd. v. Moimoon (1992 Mad LW (Cri) 68) has held that under the Act, 1986, a Muslim woman, after divorce, is entitled to get maintenance under Section 3(1)(a) of the Act, only for the iddat period and she cannot claim future maintenance under Section 125, Code of the Criminal Procedure. This petition is for the maintenance for the period beyond the iddat. Hence, the lower Court was right in rejecting the petition filed under Section 125 of the Code. I find no reasons for interference in the order of the Court below the result of which is the dismissal of the revision.

9. In the result, the revision petition is dismissed. Consequently, Crl. M.P. Nos. 5872 and 5873 of 1992 are also dismissed.