FARIDABANO SHAHABUDDIN KADRI Vs. SHAHABUDDIN MUZZARODDIN KADRI

JUDGEMENT

(1.) THIS Criminal Writ Petition No. 1160 of 1992 came up for hearing before Dhabe, J. , and the learned Single Judge vide his judgment dated 30th October 1990 referred the matter to the Division Bench as it involves a rather important issue touching the enforceability of a maintenance order that has been passed prior to the promulgation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which came into force on 19th May 1986. The learned Single Judge had before him two proceedings, Criminal Revision Application No. 289 of 1989 from Bombay, and the other Criminal Writ Petition No. 1160 of 1988 from Nasik. Both cases concerned divorced Muslim women. In both instances, order for payment of maintenance had been passed in favour of the divorced wife under section 125 of the Code of Criminal Procedure and the applications relating to enforcement of those orders were pending before the Court in May 1986 when the new Act came into force. Section 7 of the Act requires that such pending proceedings be disposed of in accordance with the provisions of the new Act and not in keeping with the provisions of the Code of Criminal Procedure except in cases where parties have agreed that the provisions of that Code are to apply.

(2.) IN substance, therefore, the issue which the courts had to resolve was as to whether the existing orders for payment of maintenance could be enforced in the face of the legislative changes. The husbands had contended that the new Act had superseded the provisions of the Code of Criminal Procedure and that under this Act the absolute right of a divorced Muslim women to claim maintenance was curtailed and restricted to the payment of Maher and to the Iddat period and that, consequently, no liability by way of maintenance is enforceable after the termination of that period. Consequently, it is argued that it would not be permissible to invoke the provisions of the Code of Criminal Procedure in relation to divorced Muslim women after 19th May 1986 in relation to the enforcement of maintenance orders even if such orders had been passed earlier. Conversely, on behalf of the applicants-wives, it was argued that the Act can only take effect prospectively, that rights have vested in favour of the divorced women by virtue of Court orders and that in the absence of any provisions in the Act, express or implied, those vested rights cannot be extinguished. It is this controversy that is required to be resolved in the present reference because three of the learned Single Judges of this High Court who had occasion to deal with the issue have expressed slightly divergent views, but as pointed out by Dhabe, J. , since the Act has been considered by many of the other High Courts, the position in law requires to be resolved. We shall briefly deal with the relevant facts.

(3.) THE petitioners in Criminal Writ Petition No. 1160 of 1988, Mrs. Faridabano Shahabuddin Kadri and her son Hunoddin Shahabuddin Kadri, who are the divorced wife and son of one Shahabuddin Muzzaroddin Kadri, obtained an order dated 14th August 1979 for maintenance of Rs. 175/- per month for the wife and Rs. 125/- per month for the son which was in modification of an earlier order for lower amounts. As the maintenance was not paid, Miscellaneous Application No. 113 of 1986 was filed in the Court of the Judicial Magistrate, First Class, Nasik in which proceedings on 7th August 1986 the husband applied for stay of the recovery on the ground that the Act of 1986 precluded any demand for such maintenance. The learned Judicial Magistrate, First Class, Nasik by order dated 30th June 1987 dismissed the application for stay against which Criminal Revision Application No. 279 of 1987 was preferred. The learned Third Additional Sessions Judge, Nasik by order dated 30th July 1988 took the view that the independent right of a child remains unaffected after the passing of the Act and that, therefore, the recovery warrant for the claim of past maintenance for the son was justified. As far as the wife was concerned, the plea of the husband was upheld by virtue of the change of law. The learned Judge came to the conclusion that she had no right to enforce the earlier order of maintenance. Aggrieved by this order, the petitioners approached the High Court through the present Criminal Writ Petition.