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1989 Supreme(Bom) 213
BOMBAY HIGH COURT
JAHAGIRDAR AND NIRGUDKAR, JJ.
Qazi Mohomed Hanif, Applicant
Versus
Smt. Mumtaz Begum and another, Respondents.
Criminal Ref. No. 1 of 1989
Decided on : 16 -8 -1989.
Jalal H. Shaikh, for Applicant; M.J. Miranda, for Respondent; Mrs. M.A. Rao, Public Prosecutor, for the State.
The Muslim Women Act of 1986 is declaratory in character and a Muslim divorced woman can claim maintenance only under the provisions of the Muslim Women Act of 1986 irrespective of the fact that an order had been passed in her favour before the Act came into force under S.125 of the CrPC.
Headnote:
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - S. 3 - APPLICABILITY - DIVORCED MUSLIM WOMEN - RIGHT TO MAINTENANCE - CODE OF CRIMINAL PROCEDURE, 1973 - S. 125 - APPLICABILITY - RETROSPECTIVITY - HELD, THE MUSLIM WOMEN ACT OF 1986 IS DECLARATORY IN CHARACTER AND A MUSLIM DIVORCED WOMAN CAN CLAIM MAINTENANCE ONLY UNDER THE PROVISIONS OF THE MUSLIM WOMEN ACT OF 1986 IRRESPECTIVE OF THE FACT THAT AN ORDER HAD BEEN PASSED IN HER FAVOUR BEFORE THE ACT CAME INTO FORCE UNDER S.125 OF THE CODE.
Fact of the Case:
A Muslim woman filed an application for maintenance under S.125 of the Code of Criminal Procedure (CrPC) after her divorce. The application was allowed, and the husband was directed to pay maintenance of Rs. 150/- per month. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Muslim Women Act) came into force on 19th May 1986. The wife made an application for recovering the arrears of maintenance for the period after this Act came into force. The husband filed an application under S.127(3)(b) of the CrPC for dismissing the wife's application on the ground that after 19th May 1986, the divorced Muslim wife was not entitled to recover any amount by way of maintenance pursuant to any order that might have been passed under S.125 of the CrPC. The trial Magistrate dismissed the husband's application and directed him to make the payment. The husband challenged this order in revision before the Additional Sessions Judge, who referred the matter to the High Court under S.395(2) of the CrPC.
Finding of the Court:
The High Court held that the reference made by the Additional Sessions Judge was unwarranted. There was no conflict between the views expressed by Mohta, J. and Loney, J. in the judgements referred to by the Additional Sessions Judge. The Muslim Women Act of 1986 is declaratory in character and a Muslim divorced woman can claim maintenance only under the provisions of the Muslim Women Act of 1986 irrespective of the fact that an order had been passed in her favour before the Act came into force under S.125 of the CrPC.
Issues: Whether the Muslim Women Act of 1986 is retrospective in operation and whether it affects the right of a divorced Muslim woman to claim maintenance under S.125 of the CrPC.
Ratio Decidendi: The High Court held that the Muslim Women Act of 1986 is declaratory in character and a Muslim divorced woman can claim maintenance only under the provisions of the Muslim Women Act of 1986 irrespective of the fact that an order had been passed in her favour before the Act came into force under S.125 of the CrPC. The Court relied on the judgement of Mohta, J. in Mahaboobkhan v. Parveenbanul, 1988 Mah LJ 751, which held that the Muslim Women Act of 1986 is retrospective in operation and that a divorced Muslim woman cannot claim maintenance under S.125 of the CrPC after the Act came into force.
Final Decision: The High Court rejected the reference made by the Additional Sessions Judge and directed him to decide the matter after following the law laid down by the Court.
JAHAGIRDAR, J. :- This is a reference made by the learned Additional Sessions Judge of Greater Bombay under S.395(2) of the Code of Criminal Procedure. The reference arises out of proceedings initiated by the Muslim wife under S.125 of the Code of Criminal Procedure and also out of an application made by the husband under S.127(3)(b) of the Code.
2. Few facts ought to be necessarily stated in order to understand the circumstances under which the learned Additional Sessions Judge has made the reference. On 16th of July, 1979, there was a divorce between the wife and the husband who had been married several years earlier. The wife made an application which was treated as Criminal Case No. 915/MN/1979 under S.125 of the Code of Criminal Procedure, hereinafter referred to as "the Code", for maintenance. On 14th of October, 1980, the Metropolitan Magistrate of Vikhroli passed an order giving maintenance to the wife of Rs. 150/- per month.
3. As is well known, the Muslim Women (Protection of Rights on Divorce) Act, 1986, hereinafter referred to as the Muslim Women Act of 1986, came into force on 19th of May, 1986. The wife made an application for recovering the arrears of maintenance for the period after this Act came into force. This application has been treated as Criminal Case No. 636/N/1986. In these proceedings, the husband made an application under S.127(3)(b) of the Code for dismissing the wife's application on the ground that after 19th of May, 1986, the divorced Muslim wife was not entitled to recover any amount by way of maintenance pursuant to any order that might have been passed under S.125 of the Code.
4. The learned trial Magistrate, by his order dated 12th October, 1988, dismissed the husband's application and directed him, allowing the wife's application, to make the payment. This order was challenged by the husband in revision, being Criminal Revision Application No. 357 of 1958, which came up for hearing before Mr. H.S. Ghare, the learned Additional Sessions Judge, Greater Bombay (Court No. 37). The learned Additional Sessions Judge noticed two judgements of this Court. which were in the field and which were directly on the point that arose in the revision application. The first of these judgements is Mahaboobkhan v. Parveenbanul, 1988 Mah LJ 751. Then there was another judgement of Loney, J. in Zahid Ali v. Fahmida. (1988) 2 DMC 387. From the way the learned Additional Sessions Judge has noticed these two judgements, we gathered an impression that he thought that there was some inconsistency between these two judgements. The learned Additional Sessions judge also noticed some other judgements of the other High Courts touching upon this point, and thereafter formed an opinion which he has expressed in paragraph 8 of his judgement and order dated 21st of February, 1989. The said opinion is as follows :
"I also heard the learned Counsel for the State Shri Raje who submitted that since this question of law involved is likely to affect number of such proceedings and since the judgement of his Lordship Mr. Justice Mohta and the Judgements of Calcutta and Kerala High Courts are at variance, coupled with the observations of His Lordship Mr. Justice Loney, it would, be a fit case to refer to Hon'ble High Court under S.395(2) of Criminal Procedure Code so that the law is well settled by a larger Bench of this High Court."
Hence the reference has been placed before this Bench.
5. We have heard Mr. Miranda and Mr. Shaikh, the learned Advocates appearing for the wife and husband respectively. Mrs. Rao, the learned Public Prosecutor, has also assisted us. After having heard the learned Advocates and after having gone through the judgements referred to by the learned Additional Sessions Judge, we are of the opinion that the reference under S.395(2) of the Code made by the learned Additional Sessions Judge is wholly unwarranted. There is no conflict at all between the two views expressed by Mohta, J. and Loney, J. in t
