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GAUHATI HIGH COURT
G. M. LODHA, C. J. AND S. N. PHUKAN, JJ.
Idris Ali and etc.etc -Appellant
Versus
Ramesha Khatun and etc.etc -Respondent
Crl. Revns. Nos. 209, 112, 148 of 1987 and 234 of 1983
Decided On : 08-03-1988
MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - S.7 - INTERPRETATION - PENDING PROCEEDINGS - MAINTENANCE OF DIVORCED MUSLIM WOMEN - ENFORCEMENT OF ORDERS PASSED UNDER S.125 CR.P.C. - APPLICABILITY OF S.7.
Fact of the Case:
In a bunch of revision petitions, the court was tasked with interpreting S.7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act of 1986). The issue arose when divorced Muslim women sought to enforce final orders for maintenance granted under S.125 of the Code of Criminal Procedure (Cr.P.C.) after the Act of 1986 came into force. The petitioners, who were husbands, argued that S.7 of the Act rendered Ss.125, 127, and 128 of the Cr.P.C. unenforceable for divorced Muslim women.
Finding of the Court:
The court held that S.7 of the Act of 1986 only applied to applications under Ss.125 and 127 of the Cr.P.C. that were pending before a Magistrate on the commencement of the Act. The court interpreted the word "pending" to mean that the proceedings had not been concluded and that the Magistrate had the power to make an order on the matter in issue. Since the proceedings under Ss.125 and 127 in the present cases had been concluded by final judgments granting maintenance, the court held that S.7 did not apply and that the divorced Muslim women were entitled to enforce the orders for maintenance under S.128 of the Cr.P.C.
Issues: 1. Whether S.7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, rendered Ss.125, 127, and 128 of the Code of Criminal Procedure unenforceable for divorced Muslim women. 2. Whether the divorced Muslim women could enforce final orders for maintenance granted under S.125 of the Cr.P.C. after the Act of 1986 came into force.
Ratio Decidendi: 1. The court interpreted S.7 of the Act of 1986 to mean that it only applied to applications under Ss.125 and 127 of the Cr.P.C. that were pending before a Magistrate on the commencement of the Act. 2. The court held that the word "pending" meant that the proceedings had not been concluded and that the Magistrate had the power to make an order on the matter in issue. 3. Since the proceedings under Ss.125 and 127 in the present cases had been concluded by final judgments granting maintenance, the court held that S.7 did not apply and that the divorced Muslim women were entitled to enforce the orders for maintenance under S.128 of the Cr.P.C.
Final Decision: The court held that S.7 of the Act of 1986 did not apply to the present cases and that the divorced Muslim women were entitled to enforce the orders for maintenance granted under S.125 of the Cr.P.C. The court directed that the cases be listed before the learned single Judge for early disposal in accordance with the decision.
G.M. LODHA, C. J. : - In this bunch of revision petitions, an important question relating to interpretation of S.7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, for short Act of 1986, has been referred to this Bench by a single Bench. The order dt. 11- 11-87 passed in one such Criminal Revision, viz., Criminal Revision No. 112/87 by the learned Judge runs as follows : - .
"A question of great importance in so far as divorced Muslim Women are concerned has arisen in these cases. The point for consideration is whether the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, shall have application when a divorced woman approaches the Court of a Magistrate for execution of the final order already passed in her favour under S.125 of the Cr.P.C. For this purpose, it would be required to be seen whether S.7 of the aforesaid Act shall have application at the stage of execution of the final order passed under S.125 of the Cr.P.C. Many such cases are said to be pending in different Criminal Courts of this State, and indeed, some are pending before this Court itself. The point is important, and there is no decision of this Court on this point. It has therefore been deemed appropriate that these cases may be heard by a Division Bench. When these cases shall be heard by a Bench all other cases pending in this Court relating to this aspect would also be placed before the Bench for hearing. As the point is of general importance, it is felt that the learned Advocates General of Assam, Nagaland, Meghalaya should assist this Court. Let the records be placed before the Honble Chief Justice for his Lordships necessary orders. As the cases are related to maintenance proceedings they shall be heard by a Division Bench with utmost expedition".
Sd/- B. L. Hanasaria Judge".
2. In pursuance of the above order, we have heard the learned counsel for the petitioners and also learned counsel for the opposite parries on the point raised. None of the Advocates General has appeared to assist this Court in respect of interpretation of S. 7 of this new Act of 1986.
3. Since, we are not deciding the revision petitions on merit as it would depend on the facts of each case, it is not necessary for us to mention the facts given in these cases.
4. It would be sufficient to mention that these are cases where the divorced wives claimed maintenance against their husbands for themselves and in some cases for their . children under S.125 Cr.P.C. Invariably the maintenance has been granted. After the grant of maintenance when the proceedings under S.125 Cr.P.C. were over, the question of payment and enforcement of the order of the learned Court below for payment under S. 128 arose.
5. During this period the Act of 1986 came into force and the husband i.e. the petitioner in Criminal Revision No. 112/87 applied to the Magistrate that he has divorced his wife and therefore, the maintenance should be stopped. The Magistrate did not accept this plea and distress warrant was issued and the petitioner husband came before this Court.
6. We are giving facts only of one case in order to mention how the controversy arose. The husband made a prayer before the Magistrate to stop the maintenance which was not allowed and when a distress warrant was issued he came to this Court and during the pendency of the Criminal Revision, the above order dt. 11-11-87 has been passed by the learned single Judge for a decision by a Division Bench.
7. It may be incidentally mentioned that in this particular case earlier order dt. 4-4-87 under S.125, Cr.P.C, passed by the learned Magistrate became final as the revision was rejected.
8. Now the question which has been canvassed before us by the learned counsel for the petitioner, Mr. A. Ahmed is that as soon as the Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force, Ss, 125, 127, 128 so far as divorced Muslim women are concerned became dead and unenforceable by virtue of S.7 and also by
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