S K OMAR ALI Vs. ASPIA BIBI

JUDGEMENT

(1.) The facts and circumstances leading to the instant revisional application may in substance be stated as follows.

(2.) The wife opposite party No. 1 filed on 24-12-85 case under Section 125, Cr. P.C. being Misc. Case No. 149 of 1985 against the petitioner-husband claiming maintenance allowance for herself and her minor son on the ground of neglect and refusal on the part of the petitioner to maintain them. The opposite party No. 1 filed written objection on 26-8-86 admitting that the applicant was his legally married wife and that the minor son for whom the maintenance was claimed by the applicant was born out of the wedlock. During the pendency of that Misc. case, the petitioner filed on 21-12-88 an application under Section 3(b) and Section 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 praying for rejection of the application that was filed under Section 125, Cr. P.C. alleging that he had divorced his wife on 16-3-88 and that the said divorce was intimated to the applicant by the Muslim Marriage Registrar of Kanksa and that in view of the said divorce and the pendency of the application under Section 125, Cr. P.C. on 19 May, 1986, the date on which the Muslim Women (Protection of Rights on Divorce) Act, 1986 had come into force, the said application under Section 125 is not maintainable. The applicant under Section 125, Cr. P.C. opposed the said application of the petitioner on filing a written objection praying for rejection of that application denying the alleged divorce and contending inter alia that the application under Section 125 was quite maintainable and the applicant was entitled to get maintenance allowance as prayed for. Upon hearing both parties, the learned Magistrate by order dated 17-1-89 rejected the husband's application under the Muslim Women (Protection of Rights on Divorce) Act, 1986 as he was of the view that it was not maintainable. The husband-petitioner did not challenge this order before higher Court and allowed the case under Section 125, Cr. P.C. to be proceeded with. Upon consideration of the evidence adduced by the parties during the trial of the Misc. Case, the learned Magistrate by his judgment dated 1-11-90 allowed the application under Section 125, Cr. P.C. directing the petitioner-husband to pay maintenance with effect from the date of filing of the case at the rate of Rs. 150/- per month for the wife herself and at the rate of Rs. 125/- per month for the minor son till his attainment of majority. Being aggrieved by this judgment, the husband preferred a motion being Criminal Motion No. 74 of 1990 before the Sessions Judge and the Sessions Judge by his judgment dated 27-3-91 dismissed the motion subject to the modification that the maintenance awarded by the Magistrate in favour of his son would be payable till 2-4-88. The wife put the award into execution in Misc. Execution Case No. 13 of 1991 on 17-8-91 for realisation of arrear maintenance allowance. On 13-3-92, the husband preferred a revision being Criminal Revision No. 725 of 1992 before the High Court challenging the judgment dated 1-11-90 passed by the learned Magistrate in the Misc. Case No. 149 of 1985 and the order dated 27-3-91 passed by the learned Sessions Judge in Criminal Motion No. 74 of 1990. The said revision case was filed 265 days after the expiry of the prescribed time limit and for condonation of the delay, an application under Section 5 of the Limitation Act was filed on behalf of the husband. N. N. Bhattacharyya, J. as His Lordship then was, was not satisfied with the explanation offered for the delay in filing the revisional application and accordingly, by order dated 6-9-93 dismissed the application under Section 5 of the Limitation Act. So far as the revisional application itself was concerned, His Lordship was of the view that the said application was a second revisional application and was barred under Section 397(3) of the Cr. P.C. and as such, refused to entertain the revisional application. Thereafter, the husband filed a suit being Title Suit No. 179 of 1993 and prayed for a temporary injunction in the suit restraining the wife from giving any effect to the award of maintenance allowance passed in Misc. Case No. 149 of 1985 and the order dated 27-3-91 passed by the learned Sessions Judge rejecting the Criminal Motion No. 74 of 1990 and also from proceeding any further with Misc. Execution Case No. 13 of 1991 till the disposal of the suit. The injunction having been refused the husband preferred an appeal being Misc. Appeal No. 42 of 1994. Thereafter, on December 18, 1994 the husband filed an application under Section 127 of the Cr. P.C. being Misc. Case No. 44 of 1994 in the Court of the Sub-Divisional Judicial Magistrate praying for setting aside the order of maintenance passed in Misc. Case No. 149 of 1985 on the ground that he had already divorced the wife on 16-3-88. The wife resisted the application on filing a written objection challenging the maintainability of the said application and upon hearing both sides, the ld. Magistrate by his order dated 17-7-96 dismissed the application under Section 127 Cr. P.C. in view of the fact that the petitioner had already unsuccessfully raised the question of divorce even before the order of maintenance allowance was passed under Section 125 Cr. P.C. by the Magistrate. And hence the application. Against this application, opposite party No. 1 filed an affidavit in opposition.

(3.) Mr. Ashim Roy, appearing for the petitioner, made the following submissions. The order dated 17-1-89 passed in Misc. Case No. 149 of 1985 whereby the ld. Magistrate rejected the petitioner's application under Sections 3(b) and 7 of the Muslim Women (Protection of rights on divorce) Act, 1986 was bad, illegal and without jurisdiction. The opposite party No. 1 might have been the legally married wife of the petitioner on 24-12-85, the date on which the opposite party No. 1 filed the application under Section 125 Cr. P.C. (Misc. Case No. 149 of 1985) and might have continued to be so till 19-5-86, the date on which the Muslim Women (Protection of Rights on Divorce) Act, 1986 did come into force and also till 26-8-86, the date on which the petitioner filed the written objection admitting the opposite party No. 1 to be his legally married wife. But the situation had undergone a change thereafter by reason of the fact that the petitioner did divorce the opposite party No. 1 on 16-3-88, the date on which the application under Section 125 Cr. P. C. was pending. Sub section (1) of Section 3 of the Muslim Women (Protection of rights on divorce) Act, 1986 contains a non-obstante clause and entitles a divorced muslim woman, amongst others, to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and similar provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of the children, if there by any, born to her before or after her divorce, where she herself maintains such children. Sub-section (2) entitles a divorced woman or anyone duly authorised by her on her behalf to make an application to a Magistrate for an order for payment of such provision of maintenance and other dues admissible to her under sub-section (1) in case of default in making the payment or delivery of the properties as contemplated under sub-section (1), on her divorce. According to sub-section (3) of Section 3, where an application has been made under sub-section (2) by a divorced woman, the Magistrate may upon satisfaction that her husband having sufficient means has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children or the cash equivalent of the dower or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, may make an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper or as the case may be for the payment of such dower or the delivery of such properties as mentioned in sub-section (1) to the divorced woman. In the event of any failure without sufficient cause to comply with the order made under sub-section (3), sub-section (4) provides for the procedure for execution of that order. Section 5 gives an option to the divorced woman and her former husband to be governed by the provision of Section 125 of the Cr. P.C. and provides for the procedure for exercising such option. Section 7 of the Act also contains a non-obstante clause and provides for disposal of every application by a divorced woman under Section 125 or under Section 127 of the Code of Criminal Procedure if pending before a magistrate on the commencement of this Act, in accordance with the provisions of the Act subject, however, to the provisions of Section 5 of the Act. In view of Explanation (b) to sub-section (1) of Section 125 of Cr. P.C., maintenance allowance is admissible to even a wife who has been divorced by her husband and is not remarried. But for a muslim woman who has been divorced by her husband in accordance with muslim law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted and in view of the non-obstante clause contained in Section 3 of that Act, the provisions of Section 125 of the Code of Criminal Procedure which are inconsistent with this enactment can be said to have suffered an implied repeal so far as the divorced woman is concerned and consequently any obligation imposed under the provisions of Section 125 of Cr. P.C. must be deemed to have ceased to have any effect with effect from the date of coming into force of this Act. Mr. Roy relied on a Division Bench decision of this Court reported in 1989 Cal Cri LR 197; Abdul Satter v. Sahani Bibi. In the instant case, however, the order under Section 125 Cr. P.C. was yet to be passed on 19-5-86, the date on which the Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force. In fact, the divorce itself is alleged to have taken place long after the coming into operation of this enactment. According to Mr. Roy, in view of the aforesaid Division Bench decision, had there been any order of maintenance allowance under Section 125 Cr. P.C. in favour of the wife, the petitioner's obligation to pay the said maintenance allowance would have ceased to have any effect after the divorce and the petitioner could have maintained an application under Section 127 Cr. P.C. by proving the factum of divorce. But since in the instant case, the divorce took place on 16-3-88 long after the advent of the new enactment at a time when the application under Section 125 Cr. P.C. was still pending, the application under Section 125 Cr. P.C. would cease to be maintainable with effect from the date of that divorce and the ld. Magistrate ought to have allowed the application that was filed by the petitioner under the Muslim Women (Protection of Rights on Divorce) Act, 1986 on 21-12-88. The ld. Magistrate was not justified in rejecting the said application of the petitioner straightway without giving the petitioner an opportunity to prove the factum of divorce pleaded in the said application. The order passed by the Magistrate on 17-1-89 rejecting the said application of the petitioner was wholly bad, illegal and without jurisdiction. The Magistrate was also not justified in allowing the application under Section 125 Cr. P.C. by his order dated 1-11-90 without recording any finding on the question of divorce. The Magistrate's order dated 1-11-90 granting maintenance allowance, to the wife opposite party No. 1 treating her as the legally married wife was equally bad and without jurisdiction. Even the order dated 27-3-91 passed by the Sessions judge in Criminal Motion No. 74 of 1990 which was preferred against the Magistrate's order dated 1-11-90 allowing the Misc. Case No. 149 of 1985 was also bad and illegal. It was strenuously argued by Mr. Ashim Roy that none of the orders dated 17-1-89 and 1-11-90 passed by the ld. Magistrate in Misc. Case No. 149 of 1985 or the order passed by the ld. Sessions Judge rejecting the criminal motion No. 74 of 1990 could legally operate as a bar to the petitioners raising the question of divorce in Misc. Case No. 44 of 1994 under Section 127 Cr. P.C. and the ld. Magistrate was not justified in rejecting the said application under Section 127 Cr. P.C. by the impugned order dated 17-7-96. Even the order dated 6-9-93 passed by N.N. Bhattacharyya, J. as His Lordship then was, in Criminal Revision No. 725 of 1992 rejecting the application under Section 5 of the Limitation Act as well as the said revisional application, which was preferred against the Magistrate's order dated 1-11-90 and the Sessions Judge's order dated 27-3-91, cannot legally operate as a bar to the petitioners agitating the question of divorce by an application under Section 127 Cr. P.C. before the ld. Magistrate because the factum of divorce was never gone into by any court at any stage nor was there any finding recorded negativing the petitioner's allegation of divorce at any stage of the proceeding under Section 125 Cr. P.C.or in Criminal Motion 74 of 1990 or in Criminal Revision 725 of 1992. The main thrust of Mr. Roy's argument is that the orders dated 17-1-89 and 1-11-90 passed by the ld. Magistrate in Misc. case No. 149 of 1985 were without jurisdiction and as such could not operate as res judicata in the subsequent proceeding under Section 127 Cr. P.C. In support of this particular contention, Mr. Roy placed his reliance on a Supreme Court decision in the case of Sushil Kr. Mehta v. Gobind Ram Bohra reported in (1990) SCC 193. Finally, Mr. Roy submitted that the impugned order dated 17-7-96 passed in Misc. Case No. 44 of 1994 should be set aside and the petitioner should be given opportunity to prove the factum of divorce in order to absolve himself of the liability to pay maintenance allowance in terms of the order dated 1-11-90 passed in Misc. Case No. 149 of 1985 which ceased to have effect with effect from the date of divorce in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, so far as the opposite party No. 1 is concerned.