ABDUL KHADER Vs. RAZIA BEGUM

JUDGEMENT

(1.) This is a Revision Petition under Section 397 of the Code of Criminal Procedure (the Code for short) and is directed against the order dated 19-3- 1990 made by the learned III Additional Sessions Judge. Belgaum. in Criminal Revision Petition No. 242/88 on his file.

(2.) The matter is heard on admission.

(3.) The facts are these : Sri Abdul Khader, the petitioner, married Smt. Razia Begum, the respondent, on 27-4-1977. In course of time there cropped up differences between the petitioner and the respondent. According to the petitioner, some days after the marriage, the respondent deserted him and went to reside with her parents. According further to him, his efforts to bring her back to his roof through the intervention of elders proved futile. The respondent filed an application under Section 125 of the Code, seeking a monthly maintenance allowance in a sum of Rs.300/- from the petitioner, in Miscellaneous Case No.50/82. The learned Chief Judicial Magistrate, who dealt with and disposed of the application, by the order dated 20-3-1985, allowed the application and awarded a monthly maintenance allowance at the rate of Rs. 150/- per month. The petitioner feeling aggrieved by the said order, preferred a Criminal Revision Petition in the Court of Session at Belgaum in Criminal Revision Petition No. 48/85. The learned I Additional Sessions Judge, who heard the Criminal Revision Petition, by the order dated 21-10- 1986, disposed of the same confirming the order made by the learned Chief Judicial Magistrate awarding monthly maintenance allowance in favour of the respondent, but reducing the quantum of maintenance from Rs. 150/- to Rs. 100/-. The petitioner was directed to pay the monthly maintenance allowance from the date of the application filed by the respondent. The petitioner approached the learned Chief Judicial Magistrate, Belgaum, with his application, numbered as Criminal Miscellaneous No.49/87 on 11-3-1987, seeking the cancellation of the order dated 20-3-1985 made in Criminal Miscellaneous No. 50/82. He filed the application under Section 127 (3)(b) of the Code. He stated in the application that in view of the conduct displayed by the respondent, he felt convinced that the respondent had no mind to live with him as his married wife and lead marital life and that, therefore, he gave ' Talaq' pronouncing the same thrice in the presence of two persons by name A. M. Kastkar and Ahmedsaheb. According to him, he gave ' Talaq' on 17- 11 - 1986. The petitioner further stated in his application that the fact of ' Talaq' having been given was communicated to the respondent by means of a notice dated 17-11-1986 sent through Registered Post and that the respondent refused to receive the notice on 25-11-1986. According to the petitioner, along with the notice he had sent a Draft for a sum of Rs. 825/- drawn on the Branch of Canara Bank, Belgaum, towards the 'Mahr' amount of Rs. 525/- and the maintenance amount of Rs. 300/- at the rate of Rs. 100/- per month during the ' Iddat' period. According to him, he mentioned in the notice that the respondent was free to collect the properties given to her at the time of her marriage. After the notice and the Draft were returned with the endorsement by the Postal Authorities as refused, the petitioner published the contents of the notice in 'Tarun Bharat' a Daily Paper published from Belgaum in its Issue dated 28-11-1986. In the publication, he stated about the fact of he having given ' Talaq' to the respondent as per customary law prevailing in the Muslim community. The copy of the issue of the paper in which the notice came to be published was sent to the respondent. The respondent refused to receive the issue of the paper. The Postal Cover containing the issue was returned to the petitioner on 11-12-1986 with the endorsement of the Postal Authorities regarding the refusal. The ground urged by the petitioner in support of his prayer made in the application filed under Section 127(3)(b) of the Code was that in view of the divorce given by him, the respondent acquired the status of a divorced woman and that from the date of the divorce, she lost the right to recover maintenance from him under the order made in her favour by the learned Chief Judicial Magistrate on 20-3-1985 as maintained and affirmed in Criminal Revision Petition No. 48/85 on 21-10-1986. The further assertion of the petitioner was that if at all the respondent needed and required any maintenance, she has to approach the Judicial Magistrate having jurisdiction under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act. 1986 (the Act for short) which came on the statute book with effect from 19/05/1986. It was on the aforesaid grounds and assertions the petitioner sought the cancellation of the order of maintenance. The learned III Additional Chief Judicial Magistrate, Belgaum, who disposed of the application filed by the petitioner, on consideration of the evidence adduced by the petitioner, concluded that the divorce pleaded by the petitioner had been established and that the respondent being a divorced woman, had to seek her remedy for maintenance elsewhere in view of the provisions contained in Section 4 of the Act. In that view of the matter, he allowed the application in terms of the prayer made therein. The respondent, feeling dissatisfied with the order made by the learned III Additional Chief Judicial Magistrate, Belgaum, took the matter in Revision to the Court of Sessions at Belgaum, in Criminal Revision Petition No. 242-88. The learned III Additional Sessions Judge, Belgaum, heard the Revision and by the order dated 19-3-1990, allowed the Revision Petition and set aside the order made by the learned Chief Judicial Magistrate. He dismissed the application filed by the petitioner with costs. The learned III Additional Sessions Judge concurred with the finding of the learned Chief Judicial Magistrate that there was divorce and held that the respondent had been divorced by the petitioner on 25-11-1986. Reading the provisions of Section 4 of the Act and placing dependence on the decisions of the High Courts of Gujarat and Calcutta, reported in AIR 1988 Guj 141; and 1989 Criminal Law Journal. NOC 200 (Cal) he held that the Act was prospective in nature and effect; that the right acquired by the respondent by virtue of the order dated 20-3-1985 was long before the coming into force of the Act; that it was a vested right and that the Act could not take away the right acquired by the respondent crystallising into a vested right long before the Act was put on the statute book. In the view he took, as observed earlier he allowed the Revision Petition and dismissed the application filed by the petitioner with costs after setting aside the order made by the learned Chief Judicial Magistrate on the application filed by the petitioner for cancellation of maintenance.