The liability of a divorced Muslim husband to pay maintenance to his former wife under Section 125 of the Cr. P. C. continued for the period prior to the coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the new Act).

AMARABLIA SENGUPTA, J.

In this application styled as one under Section 482 of the Cr. P. C, an order dated 29-2-88 passed by the Additional Sessions Judge of Alipore in Cr. Revision No. 180/87 and affirming an order dated 30-5-87 passed by a Judicial Magistrate on a petition of the petitioner relating to a matter of maintenance under Section 125 of the Cr, P. C. is challenged.

2. The relevant facts are follows :

The petitioner Sabarak Hossain was the husband of the opposite party Sahida Khatun. Some children had also been born of the wedlock. In May, 1983 the opposite party obtained as against the petitioner an order of maintenance under Section 125 of the Cr. P. C. at the rate of Rs. 100 per month for herself and at the rate of Rs. 50 per month for the children. She had, however, been divorced by the petitioner before the passing of the order of main tenance. The order of maintenance was upheld by the High Court on 11-10-85 subject to some variation of the order in relation to a married daughter of the petitione SAHIDA KHATUNi

3. Since the passing of the maintenance order the petitioner paid only a part of the amount due to the opposite party. The dues that remained outstanding till March, 1986 amounted to Rs. 17, 250. At the instance of 1 opposite party wife the amount was under process of recovery by the Magistrate and Distress Warrant was issued.

4. In this situation the petitioner moved the Court for dropping the recovery proceeding in view of the orovisions of the Muslim Women (Protec tion of Rigms on Divorce) Act, 1986 (hereinafter referred to as the new Actt. This new Act came into force on 19-5-1986.

5. The learned Magistrate by his order dated 23-5-87 rejected the prayer of the petitioner holding that the new Act puts an end to the liability of the petitioner to pay the maintenance subsequent to March, 1986 and that he can not escape the liability to pay the maintenance till March, 1986.

6. It is not clear why the Magistrate limits the liability period till March, 1986 when the new Act came into force on 19-5-F6. However, that was a Criminal Revision against the"; above order of the learned Magistrate. That Revisional Application was heard and dismissed by the Additional Sessions Judge of Alipore by his order dated 29-2-88.

7. That order dated 29-2-88 of the Additional Sessions Judge is chal lenged before us in the instant application.

8. If the instant application is treated as a Revisional Application under Section 397 of the Cr. P. C. it cannot be maintainable in view of sub-section (3) of Section 397 of the Cr. P. C. on the ground of its being the second Pevisional Application.

9. But this application is styled as one under Section 482 of the Cr. P. C. and it is submitted that on purely a matter of law interference of thu Court in exercise of its inherent powers is sought. The point of law arises with regard to the question as regards the continuance of the liability of 1 petitioner to pay the maintenance under Section 125 of the Cr. P. C. in view of the coming into effect by the new Act. The learned Advocate lor tn opposite party submitted that this Court can go into the said question of law despite there having been one unsuccessful Revisional Application belore me Additional Sessions Judge.

10. Accordingly, I have heard the matter to decide correctness of the impugned order in the context of the point of law raised.

11. The simple point for our determination is whether in view of the provisions I of the new Aet, the liability of the petitioner to pay the arrear amount payable to the opposite party under maintenance order March, 1986 (for which Distress Warrant was directed to be issued) is stil continuing.

12. Relying upon the Division Bench decision in Abdul Sattar v. Sahani Bibi, 1989 C Cr LR (Cal) 197, learned Lawyer for the petitioner sought to impress upon this Court that since with the coming into eiiect ol the new Act Section 125 of the Cr. P. C. should be treated as non est in respect of divorced

Muslim

Click Here to Read the rest of this document