MOHAMMED HAJI Vs. RUKIYA

JUDGEMENT

(1.) Revision petitioner who is the husband of the respondent challenges the order in CMP 1939 of 1986 of the Judicial Magistrate of the Second Class, Perinthalmanna. The respondent filed the petition to enforce the order of maintenance in favour of her children and herself. Maintenance was granted at the rate of Rs. 200/- per month to the respondent and Rs. 50/- per month each to the children. This was so ordered by the Sessions Judge. This has become final.

(2.) Contention of the revision petitioner is that proceedings under S.128 Cr. PC cannot be taken in view of S.7 of the Muslim Women (Protection of Rights on Divorce) Act 1986 (for short the Act). It is clearly untenable as that does not have any application regarding proceedings under S.128 Cr. PC S.7 of the Act contains the transitional provisions. S.7 provides that every application by a divorced woman under S.125 or under S.127 of the Criminal Procedure Code 1973 pending before a Magistrate on the commencement of the Act, shall notwithstanding anything contained in that Code and subject to the provisions S.5 of the Act, be disposed of by such Magistrate in accordance with the provisions of this Act. As the petition has been filed under S.128 Cr. PC for the enforcement of maintenance already ordered i. e. long prior to the commencement of the Act and as S.7 of the Act does not bar the relief sought under S.128 it is futile to contend that the Magistrate has no jurisdiction to proceed to recover the amount. The transitional provision contained in S.7 of the Act applies only to applications pending before Magistrate under S.125 or 127 Cr. PC. It has no application to any proceedings taken under S.128 Cr. PC. After the commencement of the Act the Code has not been repealed. The Act does not say that the maintenance ordered under the provisions of the Code has become unenforceable. It is always open to a divorced Muslim wife who has obtained maintenance under S.125 or enhanced maintenance under S.127 to enforce it under S.128. So long as S.7 of the Act does not interdict proceedings under S.128 Cr. PC it is not possible to hold that after the commencement of the Act the respondent cannot file the petition for enforcement of the order in her favour.

(3.) The learned Magistrate has considered all aspects of the matter correctly and properly and has passed the impugned order. Hardly there is any ground to interfere. Petition is dismissed.