A ABDUL GAFOOR Vs. A U PATHUMMA BEEVI

JUDGEMENT

(1.) An order of the Court of Session, Trivandrum enhancing maintenance awarded to a divorced muslim wife and her daughter, after the Muslim Women (Protection of Rights on Divorce) Act, 1986 (herein-after called 'the Act') came into force is impugned in these proceedings.

(2.) Maintenance was awarded to the wife and daughter earlier. By M. C. 59/87 they sought enhancement and the Chief Judicial Magistrate, Trivandrum declined the prayer. Additional Sessions Judge, revised the order of the magistrate and enhanced the amount. The enhancement in favour of the daughter is not challenged, and rightly too.

(3.) The question for consideration is, whether a muslim wife is entitled to invoke S.127 of the Code after 19-5-86, the date on which the 'Act' came into force. Learned Sessions Judge felt that she could. In his view, the Act supplemented the rights enuring to a divorced muslim wife under 125 to 128. The reasons for this conclusion, is that there was no repeal of 125 to 128, express or implied. According to him in the absence of repeal, the Act supplemented, widened or enriched the contents of rights enuring to the wife under the Code. The Sessions Judge thought that such was the intention of Parliament. Decisions of this court in Ali v. Sufaira ( 1988 (2) KLT 94 ) and Aliyar v. Pathu ( 1988 (2) KLT 446 ) were also referred to, to support this view. The decisions have no bearing on the question arising in this case. In Ali v. Sufaira the learned Judge was dealing with the sweep of the expression 'provision' occurring in S.3 (1) (a). In Aliyar v. Pathu the Division Bench, considered the scope of S.3(1) & (2) of the Act and the liability of a former husband to make provision for the wife, beyond iddat period. Whether an action under S.127 survives the Act, was not considered in the decisions cited, and they are of no help in resolving the controversy raised.