NAZIMUNNISSA BEGUM Vs. ABDUL MAJEETH

JUDGEMENT

(1.) This revision is against the order of the learned Principal Sessions Judge, Trichy, in Crl. R.C. No. 8 of 1992 setting aside the order of the learned Judicial Magistrate No. VI, Trichy in Crl. M.P. No. 4728 of 1990 in the petition filed under Section 128 Code of Criminal Procedure.

(2.) The parties are Muslims. The revision petitioner was married to the respondent herein in 1978 and the respondent is said to have divorced the petitioner according to Muslim law by pronouncing Talaq in 1985 and also has married a second wife in September 1985. The petitioner filed the petition M.C. No. 12 of 1985 on the file of the judicial Magistrate VI, Trichy, under Section 125 Code of Criminal Procedure for maintenance. The learned Magistrate passed the order on 23-5-1986 allowing the petition for payment of maintenance by the respondent herein at the rate of Rs. 250.00 per month. It is pertinent to mention that the Muslim Women (Protection of rights on Divorce) Act, 1986, (hereinafter to be referred to as Act, 1986) came into force on 19-5-1986 and the order of the learned Magistrate was pronounced four days after the commencement of this Act. The revision against the order of the learned Magistrate awarding maintenance was also dismissed by the Sessions Court, Trichy. Thereafter, she filed execution petition No. 5 of 1987 and realised some amount towards the arrears of maintenance. Subsequently after 3 years, she filed another petition Crl. M.P. No. 4728 of 1990 for the arrears of maintenance under Section 128 Code of Criminal Procedure and it was only at that time the respondent herein contended that under the new Act, 1986, he was not liable to pay maintenance to his former wife, the revision petitioner, and the petition was not maintainable. The learned Magistrate rejected his contention and ordered for the payment of the arrears of the maintenance amount. On revision before the Sessions Court, Trichy, the learned Sessions Judge, accepting the contention of the respondent herein, dismissed the petition under Section 128, Code of Criminal Procedure as it was not maintainable in view of Sections 3, 4 and 5 of the Act, 1986. Hence, this revision has been filed.

(3.) The learned counsel for the revision petitioner contended that though the order of the learned Magistrate in M.C. No. 12 of 1985 was passed subsequent to the commencement of the Act, the respondent herein did not object for passing the orders under Section 125 Code of Criminal Procedure and subsequently when the first execution was taken up in E.P. No. 5 of 1987 also, the respondent did not object for the maintainability of the petition and therefore, now, he cannot seek umbrage under the new Act to avoid the payment of the maintenance. The learned counsel has cited series of decisions to show that the revision petitioner is entitled to enforce the order passed in M.C. No. 12 of 1985 under Section 125, Code of Criminal Procedure as the order has already come into effect.