HYDERKHAN Vs. MEHARUNNISSA

JUDGEMENT

(1.) Petitioner challenges the order of the Additional Sessions Judge, Palakkad in Crl.R.P. 14 of 1990 confirming the order of the Chief Judicial Magistrate, Palakkad in M.C.6 of 1989. The M.C. was filed under S3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 by the respondent.. Respondent was married by the petitioner on 26-3-1980. Due to estrangement between them the marital relationship was snapped. Divorce was effected on 26-10-1980. In the wedlock a male child was born to the respondent on 22-2-1981. Learned Chief Judicial Magistrate awarded altogether Rs.24,000/- to the respondent. This has been confirmed by the learned Additional Sessions Judge holding that it is not possible to hold that the amount awarded by the Chief Judicial Magistrate is excessive.

(2.) Contention of the petitioner is that the respondent was divorced on 26-10-1980 and as the divorce was before the commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act') she is not entitled to any benefit under the Act.

(3.) The short question that arises for consideration is as to whether the Act is retrospective or not. The cardinal principle is that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The Supreme Court held in Mithilesh Kumari v. Prem Behari Khare ( AIR 1989 SC 1247 ) that a retrospective operation is not to be given to a statute so as to impair existing fight or obligation, other wise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The Supreme Court further held that the laws made justly and for the benefit of individuals and the community as a whole may relate to a time antecedent to their commencement and that the presumption against retrospectivity may in such cases be rebutted by necessary implication from the language employed in the statute. It is not possible to hold as an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. Mere non mention in the statute that it is retrospective is not sufficient to hold that the statute has only prospective operation.