IMPORTANT POINT
Muslim women (Protection of Rights on Divorce) Act has retrospective effect in operation.

ORDER

Pareed Pillay, J. - Petitioner challenges the order of the Additional Sessions Judge, Palakkad in Crl. R.P. 14 of 1990 confirming the order of the Chief Judicial Magistrate, Palakkad in M.C.6 of 1989. The M.C. was filed under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 by the respondent. Respondent was married by the petitioner on 26.3.1980. Due to estrangement between them the marital relationship was snapped. Divorce was effected on 26.10.1980. In the wedlock a male child was born to the respondent on 22.2.1981. Learned Chief Judicial Magistrate awarded altogether Rs. 24,000/- to the respondent. This has been confirmed by the learned Additional Sessions Judge holding that it is not possible to hold that the amount awarded by the Chief Judicial Magistrate is excessive.

2. Contention of the petitioner is that the respondent was divorced on 26.10.1980 and as the divorce was before the commencement of the Muslim Women (protection of Rights on Divorce) Act, 1986 (for short 'the Act') she is not entitled to any benefit under the Act.

3. The short question that arises for consideration is as to whether the Act is retrospective or not. The cardinal principle is that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The Supreme Court held in Mithilesh Kumari v. Prem Behari Khare1 that a retrospective operation is not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The Supreme Court further held that the laws made justly and for the benefit of individuals and the community as a whole may relate to a time antecedent to their commencement and that the presumption against retrospectively may in such cases be rebutted by necessary implication from the language employed in the statute. It is not possible to hold as an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. Mere non-mention in the statute that it is retrospective is not sufficient to hold that the statute has only prospective operation.

4. The Act is a declaratory one. The presumption against retrospective operation will not apply to declaratory statutes. The preamble of the Act sheds sufficient light as to whether it is prospective or retrospective. The preamble reads:

"An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto."

From the preamble it is very clear that the Act applies to Muslim women who have been divorced or have obtained divorce from their husbands. From a reading of the Act it is not possible to discern that it has only prospective operation.

5. Divorced woman has been defined under S. 2 of the Act. "Divorced woman" means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law. It is not possible to hold that Muslim husband's liability to provide for reasonable and fair provisions and maintenance to his divorced wife originates only from the Act. It is a duty ordained by Holy Koran. Holy Koran enjoins the husband to provide reasonable and fair provision and maintenance to his divorced wife. The following passages from various editions and

translations of the Holy Koran are relevant in this context:

The Holy Koran Translation by Abdullah Yusuf Ali at page 96:

Ayat No. 241 -For divorced women Maintenance (should be provided)

On a reasonable (scale)

This is a duty on the righteous.

Ayat No. 242 - Thus doth God

Make clear His Signs

To you: in order that Ye may understa