1987 Supreme(Cal) 348

High Court Of Calcutta
M.G.Mukherji, J.
Dolna Khatoon
Vs.
Jamaluddin Ahmed
Decided On : Nov 04, 1987

The maintenance of the minor daughter cannot be stifled with the filing of an application under section 127 of the CrPC read with sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The proceeding under section 128 CrPC for execution and enforcement of the maintenance should not be stopped till the disposal of the husband's petition under Section 127 CrPC.

Headnote:

MAINTENANCE - SECTION 125, 127, 128 CRPC - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - SECTION 3, 7 - MAINTENANCE OF WIFE AND MINOR DAUGHTER - EFFECT OF SUBSEQUENT DIVORCE - INTERPRETATION OF STATUTORY PROVISIONS - BENEFIT OF DOUBT TO NEGLECTED WIFE AND CHILD - BALANCE OF CONVENIENCE AND INCONVENIENCE.

Fact of the Case:

The wife petitioner challenged an order passed by the Sub-Divisional Judicial Magistrate, Jangipur, in an execution case arising from a proceeding under sections 125/128 of the Code of Criminal Procedure (CrPC). The wife had initially filed a proceeding for maintenance of herself and her minor daughter against the husband opposite party under Section 125 CrPC. The Magistrate granted maintenance to the wife and daughter. The husband filed a revision petition against this order, which was dismissed by the High Court. The wife also filed a revision petition for inadequacy of quantum of maintenance, which was allowed by the High Court, increasing the quantum of maintenance. Subsequently, the husband filed a petition under Section 127 of the CrPC read with sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, contending that he had divorced his wife and was not bound to give maintenance to her anymore. The wife filed a proceeding under Section 128 of the CrPC for realization of the arrears due to her, which was countered by the husband with a prayer for stay of the proceeding. The Magistrate allowed the prayer and stayed the proceeding till the disposal of the husband's petition under Section 127 CrPC.

Finding of the Court:

The High Court held that the maintenance of the minor daughter could not be stifled with the filing of the application under section 127 of the CrPC read with sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. As regards the wife, the factum of divorce had to be proved by cogent evidence in a proceeding under section 127 of the CrPC, and till such time, the proceeding under section 128 CrPC for execution and enforcement of the maintenance should not be stopped. The High Court set aside the order staying the proceeding under section 128 CrPC and directed the Magistrate to expeditiously dispose of the proceeding under section 127 CrPC.

Issues: 1. Whether the maintenance of the minor daughter could be stifled with the filing of the application under section 127 of the CrPC read with sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986? 2. Whether the proceeding under section 128 CrPC for execution and enforcement of the maintenance should be stopped till the disposal of the husband's petition under Section 127 CrPC?

Ratio Decidendi: 1. The High Court held that the maintenance of the minor daughter could not be stifled with the filing of the application under section 127 of the CrPC read with sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Court observed that welfare laws should be read as effective delivery systems of the salutary objects sought to be served by the Legislature, and when the beneficiaries are the weaker sections like destitute women, the spirit of Article 15 (3) of the Constitution must light the meaning of the section. Article 15 (3) is to be read in the context of provisions for maintenance to the wife and child, and the benefit of doubt, if any, in statutory interpretation should always go to the neglected wife and child. 2. The High Court held that the proceeding under section 128 CrPC for execution and enforcement of the maintenance should not be stopped till the disposal of the husband's petition under Section 127 CrPC. The Court observed that an application under section 127 of the CrPC did not have immediate effect in stifling the original order for maintenance as made under section 125 of the CrPC. The Court also observed that the factum of divorce, if any, had to be proved by cogent evidence by the husband in the court of law if he seeks any alteration under section 127 CrPC.

Final Decision: The High Court set aside the order staying the proceeding under section 128 CrPC and directed the Magistrate to expeditiously dispose of the proceeding under section 127 CrPC. The Court also directed that the enforcement of the maintenance should not be stayed, but if any alteration was actually made under section 127 CrPC, any amount paid in excess may stand adjusted in so far as maintenance of the wife is concerned, but it will have no effect whatsoever so far as maintenance of the minor daughter.