Does the Criminal Court exercising jurisdiction under the provisions of the Muslim Women (Protection of Rights on Divorce) Art, 1986 (for short ‘the Act’) have the power to direct interim conditional attachment of properties belonging to the respondent/divorced husband when there is apprehension that he may dispose off his properties to frustrate the attempts of his divorced wife to claim and recover amounts from him under Sec.3 of the Act? This is the crucial question that arises for consideration in this case.

2. According to the petitioner, there was valid marriage between her and the respondent. That marriage was dissolved under the provisions of the Dissolution of the Muslim Marriage Act by order dated 31/5/2002 passed by the Family Court, Kozhikode. A copy of that order is produced as Annexure-I. The petitioner complains that, amounts due under the provisions of the Act have not been paid to her. This obliged her to approach the learned Judicial Magistrate of First Class Kozhikode-V. She filed M.C.No.2/2003. A copy of that petition is produced as Annexure-II. Attempts to get the notice served on the respondent did not succeed. In these circumstances, the petitioner filed C.M.P.No.463/2003 in M.C.NO.2/03. The petition was supported by an affidavit. In the affidavit it was averred that the petitioner has come to know from specified persons that the respondent was attempting to dispose off specific immovable property belonging to him in an attempt to defeat the petitioner and to frustrate her rights to recover the amounts due under the Act. In these circumstances, she prayed that there may be an interim conditional attachment of immovable property scheduled in the petition belonging to the respondent. The respondent could not be served even when this petition for interim conditional attachment came up for hearing.

3. The learned Magistrate passed the impugned order dated 3/3/2003, a copy of which is produced as Annexure-IV dismissing the petition with a one line order which reads as follows:

“Since there is no enabling provision, this petition is dismissed.”

4. The learned counsel for the petitioner Mr. Manjeri Sunderraj submits that the learned Magistrate had too easily and willingly thrown his hands up in despair. The learned Magistrate must have taken note of the purpose, reasons and objects of the statute. The compassion of the legislature in favour of the weaker section of the polity is reflected in and underlies the provisions of the Act. The court must have shown a commitment to the purpose and objects of the statue. Courts are not to be committed to individuals or ideologies. But they must certainly be committed to the constitutional humanism reflected in its preamble and which runs through the entire Constitution. A court called upon to implement the legislative mandate cannot afford to ignore or overlook the statutory rationale, compassion and humanism reflected in and underlying a welfare legislation like the Act. Instrumentalities called upon to translate the legislative vision and mission must imbibe the legislative compassion. They must have a commitment to implementation of the statutory scheme. They must vibrate to the resonance of the constitutional philosophy and the humane sentiments underlying such a welfare legislation.

5. The inadequacies of the legislative draftsman shall also have to be overcome by purposive interpretation. It is easy to throw one’s hands up in despair and lament that there is no specific provision in the statute. Such an approach belies an unwillingness to play an active role in the translation of the legislative mandate into tangible benefits to the target group. The draftsman is, of course, human. He may not have contemplated all the contingencies. Myriad are the fact situations in which the legislative provisions will have to be applied and if the draftsman has not specifically foreseen the eventuality and made specific provision to meet such eventuality the court should n