SHAMIM BANO Vs. MOHD ISMAIL

JUDGEMENT

(1.) S. C. Mathur, J. This First Appeal under Section 19 of the Family Courts Act, 1984 (Act No. 66 of 1984) is directed against the judgment and order dated 10th March, 1987 passed by the learned Judge, Family, Court, Luck now refusing to execute the order of maintenance passed in favour of the appellant against the first respondent in proceedings under Section 125 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), for short Code, for the period subsequent to May 18,1986 in view of the enforcement of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986), for short 1986 Act, with effect from 19th May, 1986.

(2.) THE facts which are not in dispute are as follows: "the appellant and the first respondent were wife and husband. THEy are Muslim by religion. THEre was divorce between the two. THE appellant claimed maintenance from the first respondent under Section 125 of the Code which was granted to her by order dated 11th February, 1977. THE maintenance allowance was fixed at Rs. 60 per month. THE first respondent committed default in payment of the monthly maintenance which led to the % filing of application under Section 125 (3) of the Code by the appellant against the first respondent. Through this application she claimed recovery of maintenance allowance for the period 11th September, 1985 to 10th August, 1986. During the pendency of this application 1986 Act was enforced with effect from 19th May, 1986. In view of the enforcement of the Act the first respondent pleaded that since the appellant had been divorced by him he was not liable to maintain her and to pay her maintenance. THE Court below upheld the plea and directed recovery of arrears of main tenance allowance, only for the period 11th September, 1985 to 18th May, 1985. THE learned Judge refused to recover the amount falling due from 19th May, 1985. "

(3.) JUDGMENTS and orders of the Courts of law remain valid till they are set aside or superseded by the same Court on review or by superior Courts on appeal, revision or on any other proceeding allowed by law. They can also be superseded by legislative fiat, as the power of Legislature to legislate is plenary and is subject only to the limitations laid down in the Constitution. In the case on hand the order of maintenance has not been set aside by the same Court on review. In the present case the Judge Family Court will have to be treated as the Court which passed the order of maintenance. That Court has not cancelled the order of maintenance it has simply refused its execution on the supposition that the order of maintenance has become nonest on the enforcement of 1986 Act. We have, therefore, to see whether under the provisions of the 1986 Act the order of maintenance passed under Section 125 (1) of the Code is-rendered inexecutable with effect from the date of its enforcement.