1987 Supreme(Raj) 938
RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.M.Kasliwal, Farooq Hasan, JJ.
Abid Ali etc. - Appellant
Versus
Mst. Raisa Begum etc. - Respondent
D.B. Cri. Misc. Petition No. 405 of 1987 and 4 other Cri. Appeals Nos. 315, 339, 334, 283 of 1987 and 483 of 1986.
Decided On : 8-12-1987
For the Abid Ali:Mr. M.I. Khan and Mr. K.N. Garg, Advocates.
For the Qamar-uddin and Salim:Mr. Syed Manzoor Ali, Advocate.
For the Mohd Siddique:Mr. Mohd. Gafar Ali, Advocate.
For the Petitioner:Mr. N.A. Naqvi, for Mohd. Hanif and Iqbal Khah, Advocates.
For the Non-Petitioner:Mr. S.M. Khan, Najma, Advocates.
For the Non-Petitioner Abeda Begum:Mr. A.K. Bhandari, Advocate.
For the Intervener:Mr. Dilip Singh, Advocate.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 has retrospective effect and impliedly repeals the provisions of Section 125, CrPC, insofar as they create a right for a Muslim divorced woman to receive maintenance from her husband until she remarries.
Headnote:
Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act of 1986) - Applicability - Divorced Muslim women's right to maintenance under Section 125, CrPC - Whether affected by the Act of 1986 - Retrospective effect of the Act of 1986 - Interpretation of relevant provisions.
Fact of the Case:
Several cases involving the question of whether a Muslim divorced wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) after the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act of 1986) were heard together. The Act of 1986 was passed in response to a Supreme Court decision that held that a Muslim husband's obligation to provide maintenance to his divorced wife was limited to the period of iddat (waiting period after divorce).
Finding of the Court:
The Court held that the Act of 1986 has retrospective effect and impliedly repeals the provisions of Section 125, CrPC, insofar as they create a right for a Muslim divorced woman to receive maintenance from her husband until she remarries. The Court interpreted the provisions of the Act of 1986 and concluded that a Muslim divorced woman is entitled to maintenance from her former husband only for the period of iddat. After the iddat period, she can seek maintenance from her relatives or, if they are unable to provide, from the State Wakf Board.
Issues: 1. Whether the Act of 1986 has retrospective effect and affects the rights of Muslim divorced women to maintenance under Section 125, CrPC? 2. Whether the provisions of the Act of 1986 and Section 125, CrPC can coexist, or whether the Act of 1986 impliedly repeals Section 125, CrPC in relation to Muslim divorced women?
Ratio Decidendi: 1. The Court held that the Act of 1986 has retrospective effect, as it does not contain any saving clause or provision indicating otherwise. The Court noted that the Act of 1986 was enacted to protect the rights of Muslim divorced women and to provide for their maintenance, and that giving it retrospective effect would further this objective. 2. The Court interpreted the provisions of the Act of 1986 and Section 125, CrPC, and concluded that they cannot coexist. The Court held that Section 125, CrPC, insofar as it creates a right for a Muslim divorced woman to receive maintenance from her husband until she remarries, has been impliedly repealed by the Act of 1986.
Final Decision: The Court allowed the appeals filed by the husbands and set aside the orders of maintenance granted to the divorced wives under Section 125, CrPC. The Court directed that the applications of the divorced wives be decided afresh according to the provisions of the Act of 1986, treating the date of the husbands' statements as the date of divorce. The Court also held that the divorced wives would be entitled to file separate applications under the Act of 1986 for maintenance after the iddat period against the persons mentioned in Section 4 of the Act.
JUDGMENT
1. - An interesting common question of law whether after passing of Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim divorced wife has became disentitled to any maintenance under Section 125, Code of Criminal Procedure, 1973. has arisen in the afore-mentioned cases, six in numbers, (out of which, first one is Criminal misc. petition No. 405/67 - Abid Ali v. Mst. Raisa Begum, under section 482 . Criminal Procedure Code and the rest one are appeals under Section 19 of the 'amity Court Act. 1984) - hence these cases are disposed of by a single judgment.
2. Before entering into the legal controversy involved in the cases, we would like to draw a sketch of the primary facts in seriatim.1. Criminal Misc. Petition No. 405/1987The opposite party, Smt. Raisa Begum. who is said to have married to the petitioner Abid Ali, on April 29, 73 according to the Islamic customs & rites, had moved an application under Section 125, Cr. P.C , the petitioner, Abid Ali, went to Bhihadi in State of Maharashtra-during that period, the petitioner did not care to maintain his wife, Smt. Raisa who was alleged to have been maintained by her brother, Nishar, in the meantime, on April 29, 1984 a deed of divorce was sent by the petitioner to Smt. Raisa bearing date 24-4-1984, thereafter, the petitioner married with some other woman- hence the non-petitioner moved an application under Section 125, Cr. P.C. claiming her maintenance from the petitioner.The learned Chief Judicial Magistrate, Sikar, after recording the evidence and hearing the parties, allowed Rs. 200/- per month as maintenance to the non- petitioner, Smt. Raisa from 7.6.1984. The petitioner preferred a revision petition against the aforesaid order whereby the maintenance was allowed to the non-petitioner vide order dated 3 4.1986. This revision petition was heard and decided by the Additional Sessions Judge, Sikar, on March 26, 1987 but the same was dismissed. Hence this criminal misc. petition.On August 24, 1987 it was contended on behalf of the petitioner before this Court that this petition be referred to a larger Bench as similar cases are under consideration before the Division Bench of this Court. This contention was contested by the learned counsel for the non-petitioner with the submission that the point involved in the case is not similar to other cases, because this case arose prior to the commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for brevity, 'the Act of 1986') and is fully covered by the decision (per G.K. Sharma. J.) of this Court in (1) Ali Mohd. v. Smt. Zaida 1987(1) RLR 156-1987 Cr. LR. p. 129) . This Court (Per V.S. Dave, J.) in its order dated August 74, 1981, observed that, 'without going into the controversy whether this case would be governed or not, it would be advisable to finally dispose of this petition after the judgment of Full Bench decision which be listed at a very short span of time" and this Court ordered to list this petition after 10th September, 1987.But, subsequently this petition was also listed before this Bench along with the above noted five other petitions wherein the question raised is as to whether after coming into force of the Act of 1986, a Muslim divorced wife is still entitled to maintenance under Section 125, Cr P.C. Thus, with the consent of the parties, this petition was also heard on the aforesaid point along with other cases.Let us narrate some more facts which necessitate for the determination of the controversy involved.The Act of 1986 came into force with effect from May 19, 1986. The order of maintenance in favour of Smt. Raisa (Cr. Misc. Pet. No. 45/87) was passed on April 3, 1986. Revision filed against that order was dismissed on March 26, 1987. Smt. Raisa received the deed of divorce on April 29, 84. The aforesaid divorce at the relevant time was not a circumstance for disallowing the wife, of maintenance allowance under Section 125, Cr. P.C. because, under that Section, ev
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