SIRAJ SAHEBJI MUJAWAR Vs. ROSHAN SIRAJ MUJAWAR

JUDGEMENT

(1.) THIS Civil Revision Application raises an interesting and a somewhat intricate issue. The parties are muslims governed by Mahomedan Law. The present application arises out of execution proceedings. Both decree and the appellate order in this case were at the instance of the respondents under the Mahomedan Law. The respondents herein are the plaintiffs in the original suit. They are the then estranged wife and her two Children. A composite suit was filed by them being Regular Civil Suit No. 574 of 1982 in the Court of Joint Civil Judge. J. D. , Kolhapur against the petitioner - original defendant husband inter alia for divorce and for the maintenance of the children the suit was decreed by judgment and order dated June 28, 1984 in terms of which a decree for divorce was passed and the defendant husband was directed to pay a sum of RS. 100/-p. m. each by way of maintenance of the two children to the divorcee wife. The defendant husband accepted the decree. He did not file any appeal there against. He also did not file cross-objections even when the plaintiffs filed appeal inter alia claiming higher amount by way of maintenance allowance for the children. The appeal being Civil Appeal No. 421 of 1984 was disposed of by District Judge, Kolhapur by his judgment and decree dated April 11, 1988 inter alia enhancing the maintenance allowance for each of the two children to Rs. 175/- from Rs. 100/- p. m. No appeal, revision or review was filed against the aforesaid appellate order by the plaintiffs or the defendant and hence the appellate order has become final.

(2.) THE plaintiffs who, thus, became decree-holders took out Darkhast proceedings - Regular Darkhast No. 225 of 1988 against the defendant --the judgment-debtor in the executing Court referred to hereafter as the trial Court. It is in these proceedings that by application Ex. 17 dated March 7, 1989, the defendant husband resisted the execution. His main contention was that the Parliament in its wisdom has enacted an Act being Act No. 25 of 1986, namely. The Muslim Women (Protection of Rights on Divorce) Act, 1986 on May 19, 1986 (for short the new Act) Section 3 (1) (b) thereof, it was stated, limits the obligation of a Muslim husband in respect of maintenance of children maintained by the divorcee wife to two years from the date of their respective births. The provision, it was further stated, had an overriding effect on all laws including Mahomedan Law. Since, in the present case both the children were above 2 years of age at the time of divorce, he had no obligation to pay maintenance allowance to the divorcee wife and the decree cannot be executed against him. The claim was resisted by the plaintiffs. The trial Court rejected the defendant's objections vide order of the same dated i. e. March 7, 1989.

(3.) THE defendant husband has come up before this Court by way of civil revision application against the impugned order. Elaborate arguments have been advanced by Shri Rege, the learned Counsel for the petitioner-defendant. Similarly, Shri Vyas for the respondents has also assisted the Court well. For the sake of brevity it is proposed to deal with the rival contentions in the course of judgment.