The Muslim Women (Protection of Rights on Divorce) Act, 1986 did not extinguish the rights of divorced Muslim women who had obtained maintenance orders under the Code of Criminal Procedure prior to its enactment, and the orders for maintenance passed prior to the Act were enforceable in the manner provided by section 3(4) of the Act.

Headnote:
MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 7 - ENFORCEABILITY OF MAINTENANCE ORDERS PASSED PRIOR TO THE ACT - APPLICABILITY OF THE ACT - INTERPRETATION OF SECTION 7 - VESTED RIGHTS - RETROSPECTIVE OR PROSPECTIVE OPERATION OF THE ACT.
Fact of the Case:

Two cases involving divorced Muslim women who had obtained maintenance orders under section 125 of the Code of Criminal Procedure (CrPC) prior to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act). The husbands argued that the Act superseded the CrPC provisions and extinguished the right to maintenance beyond the iddat period, while the wives contended that the Act could only take effect prospectively and that their vested rights could not be extinguished.
Finding of the Court:

The Court held that the Act was not declaratory in nature and did not repeal sections 125 to 127 of the CrPC by implication. The Act only amended the law in certain circumstances in relation to divorced Muslim women. Section 7 of the Act, which dealt with pending applications under the CrPC, was interpreted strictly as a transitional provision. It applied to applications where the Court was determining the award of maintenance for the first time or where the application was for alteration or enhancement of maintenance. In cases where the application was only for assistance from the Court to enforce the Court's order, the provisions of section 3(4) of the Act, which bodily reproduced section 125(3) of the CrPC, would be applicable.
Issues: 1. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act) was retrospective or prospective in operation. 2. Whether the Act extinguished or saved the rights of divorced Muslim women who had obtained maintenance orders under the Code of Criminal Procedure (CrPC) prior to the enactment of the Act. 3. Whether the orders for maintenance passed prior to the Act were enforceable.
Ratio Decidendi: 1. The Act was not declaratory in nature and did not repeal sections 125 to 127 of the CrPC by implication. It only amended the law in certain circumstances in relation to divorced Muslim women. 2. The Act did not extinguish the rights of divorced Muslim women who had obtained maintenance orders under the CrPC prior to its enactment. 3. The orders for maintenance passed prior to the Act were enforceable in the manner provided by section 3(4) of the Act, which bodily reproduced section 125(3) of the CrPC.
Final Decision: 1. Criminal Writ Petition No. 1160 of 1988 was allowed, and the rule was made absolute in terms of prayer (a) to the petition. The interim stay was vacated. 2. Criminal Revision Application No. 289 of 1989 was dismissed, and the rule was discharged. The interim orders were vacated.

JUDGMENT - M.F. SALDANHA, J.:---This Criminal Writ Petition No. 1160 of 1992 came up for hearing before Dhabe, J., and the learned Single Judge vide his judgment dated 30th October 1990 referred the matter to the Division Bench as it involves a rather important issue touching the enforceability of a maintenance order that has been passed prior to the promulgation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which came into force on 19th May 1986. The learned Single Judge had before him two proceedings, Criminal Revision Application No. 289 of 1989 from Bombay, and the other Criminal Writ Petition No. 1160 of 1988 from Nasik. Both cases concerned divorced Muslim women. In both instances, order for payment of maintenance had been passed in favour of the divorced wife under section 125 of the Code of Criminal Procedure and the applications relating to enforcement of those orders were pending before the Court in May 1986 when the new Act came into force. Section 7 of the Act requires that such pending proceedings be disposed of in accordance with the provisions of the new Act and not in keeping with the provisions of the Code of Criminal Procedure except in cases where parties have agreed that the provisions of that Code are to apply.

2. In substance, therefore, the issue which the courts had to resolve was as to whether the existing orders for payment of maintenance could be enforced in the face of the legislative changes. The husbands had contended that the new Act had superseded the provisions of the Code of Criminal Procedure and that under this Act the absolute right of a divorced Muslim women to claim maintenance was curtailed and restricted to the payment of Maher and to the Iddat period and that, consequently, no liability by way of maintenance is enforceable after the termination of that period. Consequently, it is argued that it would not be permissible to invoke the provisions of the Code of Criminal Procedure in relation to divorced Muslim women after 19th May 1986 in relation to the enforcement of maintenance orders even if such orders had been passed earlier. Conversely, on behalf of the applicants-wives, it was argued that the Act can only take effect prospectively, that rights have vested in favour of the divorced women by virtue of Court orders and that in the absence of any provisions in the Act, express or implied, those vested rights cannot be extinguished. It is this controversy that is required to be resolved in the present reference because three of the learned Single Judges of this High Court who had occasion to deal with the issue have expressed slightly divergent views, but as pointed out by Dhabe, J., since the Act has been considered by many of the other High Courts, the position in law requires to be resolved. We shall briefly deal with the relevant facts.

3. The petitioners in Criminal Writ Petition No. 1160 of 1988, Mrs. Faridabano Shahabuddin Kadri and her son Hunoddin Shahabuddin Kadri, who are the divorced wife and son of one Shahabuddin Muzzaroddin Kadri, obtained an order dated 14th August 1979 for maintenance of Rs. 175/- per month for the wife and Rs. 125/- per month for the son which was in modification of an earlier order for lower amounts. As the maintenance was not paid, Miscellaneous Application No. 113 of 1986 was filed in the Court of the Judicial Magistrate, First Class, Nasik in which proceedings on 7th August 1986 the husband applied for stay of the recovery on the ground that the Act of 1986 precluded any demand for such maintenance. The learned Judicial Magistrate, First Class, Nasik by order dated 30th June 1987 dismissed the application for stay against which Criminal Revision Application No. 279 of 1987 was preferred. The learned Third Additional Sessions Judge, Nasik by order dated 30th July 1988 took the view that the independent right of a child remains unaffected after the passing of the Act and that, therefore, the recovery warrant for the claim of past m

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1993 Supreme(Bom) 25

Cases Referred (2)