MAHABOOBKHAN ALIAS BABU S O FAIZULLAKHAN Vs. PARVEENBANU

JUDGEMENT

(1.) Is the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act) retrospective in operation is the point that arises in this application. Following is the factual back-ground :

(2.) The applicant Mahaboobkhan married the non-applicant Parveenbanu on 25th April, 1984. Both are Muslims and were married according to Muslim law. There was a divorce between the two on 8th January, 1985. Parveenbanu applied for maintenance under section 125, Cri.P.C. on 25th January, 1985 in the Court of Judicial Magistrate, First Class, Luxettipet (A.P.), where the marriage was solemnised. By order dated 31st January, 1985 she was granted maintenance at the rate of Rs. 250/-p.m. from the date of the application till the circumstances vary. She filed an application in the Court of judicial Magistrate, First Class, Wani (M.S) (where Mahaboob Khan resides) under sub-section (3) of section 125 read with section 120. Cri.P.C. for issuance of a distress warrant for recovery of maintenance for the period 25th January, 1985 till 21st April, 1986 along with the costs amounting to Rs. 100/-. The said application was resisted by Mahaboobkhan vide reply dated 16th July, 1986 on the ground that the Act which brought into force w.e.f. 19th May, 1986 has obliterated the proceedings under section 125, Cri.P.C. and the only permissible relief for maintenance to a Muslim divorced woman thereafter was in terms of the provisions of the Act. The learned Judicial Magistrate, Wani overruled the objection on the ground that the order of maintenance under section 125, Cri.P.C. was passed prior to the commencement of the Act, which does not have retrospective effect and, therefore, the, husband Mahaboobkhan was obliged to comply with the order of maintenance dated 31st January, 1986. The said order overruling the objection was challenged before the Additional Sessions Judge, Yavatmal, who was pleased to maintain the order impugned. The present application challenges the maintainability of the application under section 125(3), Cri.P.C. dated 14th May, 1986 on the ground that its continuation is an abuse of the process of the courts.

(3.) In deciding the question of retrospectivity and the applicability of the Act to pending proceedings under section 125(3), Cri.P.C. on the date of the commencement of the Act, it will be necessary to examine not only the general scheme and the intent but also the legislative back-ground. I will first deal with the back-ground. In two decisions, (Bai Tahira v. Ali Hussain Fissali Chothia & another) A.I.R. 1979 S.C. 362 : 1 M.C. 402 (S.C.) and (Fuzlunbi v. Khader Vali & another) A.I.R. 1980, S.C. 1730 : 1 M.C. 523 (S.C.) the Supreme Court held that section 125, Cri.P.C. applied to every divorcee-woman and no exception could be carved out for a divorced Muslim wife, despite provisions of sections 127(3)(b), Cri.P.C. and Muslim Personal Law. Soundness of this view was doubted by a Division Bench when the famous matter of (Moh. Ahmed Khan v. Shah Bano Begum and others) A.I.R. 1985 S.C. 945 came up for hearing before the said Bench. The matter was referred to a larger Bench by making the following order :