SHAMSUNNISA BEGUM1 Vs. G SUBBAN BASHA

JUDGEMENT

(1.) This is a petition filed under Section 482, Cr.P.C. against the order in Criminal Revision Petition No.5 of 1992 on the file of the II Additional Sessions Judge, Kumool.

(2.) The facts leading to the present petition are as follows :- The present petitioner- Smt. Shamsunnisa Begum - was married to the 1st respondent - G. Subban Basha - in the year 1972. According to the material available on record their marriage took place on 14-5-1972. After a period of 5 years there was dis-har-mony between the spouces and, hence, Maintenance Case No.68 of 1977 was filed and maintenance was granted to the wife at Rs. 100/- per month, and, subsequently, from stage to stage, it was increased to Rs.250/-, per month. It is an admitted fact that the husband was regularly paying the maintenance. While things stood thus, the Parliament passed Muslim Women (Protection of Rights on Divorce) Act, 1986, popularly called as "Act 25 of 1986". It received the assent of the President on 19-5-1986 and it was published in the Gazette on 3-7-1986. Subsequent to this law coming into force, on 14-5-1989, the husband divorced the wife. Subsequent to the divorce the present petitioner-wife filed Maintenance Case No.23 of 1989 under Section 3 of Act 25 of 1986. While that Maintenance Case No.23 of 1989 was pending, the husband filed Criminal Miscellaneous Petition No.996 of 1990 in Maintenance Case No.68 of 1977 requesting the Court to cancel the order of maintenance in Maintenance Case No.68 of 1977. The learned Magistrate by order, dated 22-11-1991, cancelled the maintenance order from the date of enforcement of Act 25 of 1986. The action of the Magistrate brings the cancellation to a date anterior to the divorce that took place on 14-5 -1989. Aggrieved by the retrospective effect given for this cancellation order, the wife filed Criminal Revision Petition No.5 of 1992. The learned II Additional Sessions Judge by a very elaborate order, dated 16-6-1993, thoroughly examined the matter and came to the conclusion that in the back-ground of the facts of this particular case the order of maintenance passed in Maintenance Case No.68 of 1977 is not liable to be cancelled with effect from the date of enforcement of Act 25 of 1986, viz., 3-7-1986, and it stands cancelled with effect from 14-8-1989, i.e., 3 months after the date of the divorce, giving due allowance to the Iddat period. Aggrieved by the order of the Sessions Judge, the present petition under Section 482, Cr.P.C. was filed.

(3.) Sri K. Palaksha Reddy, the learned Counsel for the petitioner, relying upon the decision of this Court reported in Shaik Rqj Mohd. v. Shaik Ameena Bee (1) 1993 (1) ALT (Crl) 579 contends that the order of maintenance passed under Section 125, Cr.P.C. prior to the Act 25 of 1986, is final and valid and it cannot be affected by the promulgation of the Act. He contends that the Magistrate as well as the Sessions Judge were not justified in cancelling the order of maintenance in Maintenance Case No.68 of 1977. A perusal of the above decision of Subhashan Reddy, J. clearly shows that in that particular case the Court was dealing with a case where the order of maintenance was passed prior to the Act 25 of 1986 and without any further changes, like a divorce being affected between the parties. After the Act came into force when the husband pleaded as defence that the maintenance order is no longer valid by virtue of the Act 25 of 1986, the count came to the conclusion that Act 25 of 1986 is prospective in operation and it does not have the effect to invalidate the orders of maintenance which have been granted prior to the Act 25 of 1986 and have become final. The principle laid down in that decision is not applicable to the facts of the present case, because, in the present case, there is a change of circumstances and change of status of the parties. After the Act 25 of 1986 came into force the husband divorced the wife on 14-5-1989 and, in fact, the wife recognizing this factum of divorce, has sought relief under Section 3 of the Act 25 of 1986 by filing M.C.No.23 of 1989. Her only contention is that till all the amounts specified under Section 3 of the Act 25 of 1986 are paid, the order of maintenance passed earlier under Section 125, Cr.P.C. cannot be cancelled.