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HIGH COURT OF CALCUTTA
Gitesh Ranjan Bhattacharjee, J.
Sk. Abubakkar
Vs
Mst. Ohidunnessa Bibi
CRIMINAL REVISION No. 1734 of 1990
Decided on : April 29, 1992
MAINTENANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - ACT 25 OF 1986 - S. 3 - S. 4 - S. 5 - S. 6 - S. 7 - CODE OF CRIMINAL PROCEDURE, 1973 - S. 125 - S. 127 - S. 128 - GENERAL CLAUSES ACT, 1897 - S. 6(C) - A divorced Muslim woman is entitled to maintenance from her former husband for the period of iddat only. The liability of the former husband to pay maintenance for the divorced woman is limited to the iddat period. Claim of a divorced Muslim woman for maintenance against her former husband beyond iddat period is not tenable either under the Muslim Women (Protection of Rights on Divorce) Act, 1986 or under s. 125 Cr. P. C. except, of course, where the parties opt under s. 5 or s. 7 of the said Act to be governed by the relevant provisions relating to maintenance as contained in the Code of Criminal Procedure.
Fact of the Case:
A Muslim woman filed an application under s. 125 Cr. P. C. against her former husband claiming maintenance for herself and her child. The petitioner and the opposite party are both muslim by religion and they were married in the year 1964. That marriage was however dissolved by a Talaknama executed on 10th November, 1969. In the meantime, however a child was born to them in April 1969. The application for maintenance filed under s. 125 Cr. P. C. was allowed by the Learned Magistrate on 30th September 1983 and the Learned Magistrate granted maintenance at the rate of Rs. 100/- per month for the wife and Rs. 50/- per month for the child with effect from 1st September, 1983. The petitioner has now come up before this Court for quashing the said execution proceeding, mainly on two grounds, namely (1) that with the advent of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986) -which came into force on 19th May, 1986 - a divorced muslim woman is not entitled to any maintenance from her former husband with effect from the said date, and (2) that the impugned execution proceeding is barred by limitation.
Finding of the Court:
The Court held that the order of maintenance which was granted in favour of the opposite party herein under s. 125 Cr.P.C. ceased to have effect on the commencement of the Act 25 of 1986 and therefore the execution case based on that order must be quashed. The Court further held that the right of the child to claim maintenance under s. 125 Cr. P.C. either by itself or through its mother acting on its behalf remains in tact inspite of the right of the mother under s. 3 of the Act 25 of 1986 to claim maintenance for the child for a period of two years from her former husband where she herself maintains the child.
Issues: 1. Whether a divorced Muslim woman is entitled to maintenance from her former husband beyond the period of iddat under the Muslim Women (Protection of Rights on Divorce) Act, 1986? 2. Whether the right of a child to claim maintenance under s. 125 Cr. P. C. is affected by the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986?
Ratio Decidendi: 1. The Court held that the liability of the former husband to pay maintenance for the divorced woman is limited to the iddat period only. Claim of a divorced Muslim woman for maintenance against her former husband beyond iddat period is not tenable either under the Muslim Women (Protection of Rights on Divorce) Act, 1986 or under s. 125 Cr. P. C. except, of course, where the parties opt under s. 5 or s. 7 of the said Act to be governed by the relevant provisions relating to maintenance as contained in the Code of Criminal Procedure. 2. The Court held that the right of the child to claim maintenance under s. 125 Cr. P. C. either by itself or through its mother acting on its behalf remains in tact inspite of the right of the mother under s. 3 of the Act 25 of 1986 to claim maintenance for the child for a period of two years from her former husband where she herself maintains the child.
Final Decision: The revisional application stands allowed and the impugned proceeding quashed.
This Criminal Revision has been filed under s. 482 and s. 401 of the Code of Criminal Procedure for quashing the execution Case No. 7 of 1987 (arising out of Misc. Case no. 64 of 1982) pending in the Court of the Learned Judicial Magistrate, 2nd Court, Arambag in the district of Hoogly. The opposite party herein filed an application under s. 125 Cr. P. C. against the petitioner herein on 12th October, 1982 claiming maintenance for herself and her child. The petitioner and the opposite party are both muslim by religion and they were married in the year 1964. That marriage was however dissolved by a Talaknama executed on 10th November, 1969. In the meantime, however a child was born to them in April 1969. The application for maintenance filed under s. 125 Cr. P. C. was allowed by the Learned Magistrate on 30th September 1983 and the Learned Magistrate granted maintenance at the rate of Rs. 100/- per month for the wife and Rs. 50/- per month for the child with effect from 1st September, 1983. The said maintenance order was put to execution by the divorced wife in the impugned execution Case no. 7 of 1987 which was started on 9th March, 1987. Distrain warrant was issued in that execution case against the petitioner herein and subsequently he was arrested on the strength of a warrant of arrest issued against him in the said "execution case. However, be was released on bail on condition of making payment of the arrear maintenance. The petitioner has now come up before this Court for quashing the said execution proceeding, mainly on two grounds, namely (1) that with the advent of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986)––which came into force on 19th May, 1986––a divorced muslim woman is not entitled to any maintenance from her former husband with effect from the said date, and (2) that the impugned execution proceeding is barred by limitation. It is also the case of the petitioner herein that after his arrest and during the pendency of the impugned execution proceeding he has already paid in instalments a sum of Rs. 4,990/- towards the maintenance. It was also canvassed on behalf of the petitioner herein as the third ground in assailing the execution proceeding that the warrant of arrest was issued against him without waiting for the execution report of the distrain warrant.
2. Taking the last ground first, it appears from the certified copy of the order-sheets of the impugned execution case that there was order on 20th February, 1988 for issuing distrain warrant against the petitioner herein but as that was not issued for some reason, there was a fresh order on 3rd January, 1990 for issuing distrain warrant fixing 17th February, 1990 for E.R. (execution report). No execution report was; however returned. The Learned Magistrate issued warrant of arrest against the present petitioner by his order dated 10th August, 1990 when no E. R. of the distrain warrant was yet received. In this connection, we may refer to subs. (3) of s. 125 Cr.P.C. which provides that if any person fails without sufficient cause to comply with the order of maintenance, the Magistrate may for every breach or the order issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment, if sooner made. It is, therefore, evident that warrant of arrest, obviously for the purpose of effecting imprisonment of the person liable to pay maintenance should not be issued unless the whole or any part of the maintenance due remained unpaid after the execution of the distrain warrant. Therefore, the warrant of arrest should not be issued before receiving the execution return of the distrain warrant and before ascertaining therefrom whether the whole of the maintenance recoverable or any part thereof has yet remai
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