ABDUL SATTER Vs. SAHANI BIBI AND ANOTHER

JUDGEMENT

(1.) This matter is placed before us on a reference to the Division Bench by Sri M. G. Mukherjee, J. by his Order dated 28.9.88.

(2.) This revisional application was filed by the husband petitioner for setting aside an order passed by the ld. Addl. Sessions Judge, 9th Court Alipore in Criminal Motion No. 110/87. The petitioner's case as disclosed in his revisional application is that on Oct. 18, 1981 he married the opposite party Sahani Bibi according to Muslim rites & customs. The marriage was registered on the same date. Then Mohar was fixed at Rs. 999/-. The relationship between the parties became strain and ultimately on Sept. 29, 1982 the wife left her matrimonial home. On Nov. 8,1982 the petitioner divorced the opposite party wife by a registered talak and communicated the same to her by advocate's letter dated 1.12.82. The opposite party filed an application under section 125 of the Crimial P.C. on 15th Dec., 1982. The learned Judicial Magistrate by his order .dated 8th Aug., 1985 allowed a monthly maintenance @ 250.00 in favour of the wife and @150.00 for her baby with effect from Aug. 1985. On Sept. 29, 1986 the petitioner again pronounced three Talaks in presence of the witnesses and got it again registered. On Oct. 25, 1986 he filed an application under section 127 of the Crimial P.C. before the learned Magistrate, 6th Court, Alipur for variation and/or alteration of the earlier order passed under section 125 of the Crimial P.C. The learned Magistrate rejected the application under section 127 of the Crimial P.C. Against the order the petitioner moved the learned Sessions Judge, 24-Pgs. in Criminal Motion No. 110/87. The Criminal Motion having been dismissed the petitioner has come up with this revisional application.

(3.) It appears that if an application under section 127 of the Crimial P.C. is maintainable in a case in which an order of maintenance has been passed in favour of a Muslim divorced woman after the Muslim Women (Protection of Rights on Divorce) Act, 1986 having come into force. The learned Judge noted that there are three decisions on the point by three Honourable Judges of this Court which are conflicting. Accordingly, the matter has been referred to the Division Bench for a decision. In Criminal Revision No. 1012 of 86 Farhad Rahmen Beg Vs. Mstt. Saharana Khatoon. Mr. Monoj Kumar Mukherjee, J. held that the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 1986 Act) having come into force the provisions of section 125 of the Crimial P.C. and the other allied section shall yield place to the provisions of the Act. Accordingly, it was further held in the said decision that the opposite party wife cannot claim any further maintenance allowance relying upon the provision of section 125 Crimial P.C. In Criminal revision no. 1657/86 Sk. Ahmed Hossain Vs. Mustt. Nurjahan Begum. S. S. Ganguly, J. sitting singly held that the provisions of see. 7 of the said Act is only attracted to the proceedings pending on the date of the said Act having come into force under section 125 or under section 127 of the Crimial P.C. If no such application is pending on the said date further application under section 127 will not be maintainable. The third decision on the point is reported in (1987)2 Cal HN 469 : 1987 C Cr LR (Cal) 287 ; Dolna Khatoon Vs. Jamaluddin Ahmed & Anr. Mr. M. G. Mukherjee, J. held that the maintenance of the minor daughter cannot in any manner be affected with the filing of the application under section 127 of the Crimial P.C. read with sections 3 &7 of the said Act but with regard to the wife who is said to have been divorced subsequently by the husband the factum of such divorce has to be proved by the cogent evidence in a proceeding under section 127 of the Crimial P.C. The proceeding under section 128 Crimial P.C. for execution and enforcement of the maintenance should not in any manner be stopped until the order of maintenance is altered on proof of the supervening circumstance. In resolving the conflicts arising from these three judgments we must first take into consideration the relevant laws laid down by the said Act. The Muslim Woman (Protection of Rights on Divorce) Act, 1986 came into force on 19th May, 1986. It extends to the whole of India except the State of Jammu & Kashmir. Sec. 3 is the substantive section in this legislation. It lays down with a non-obstante clause that a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband, children born before or after her divorce and is being maintained by her is also entitled to a fair provision and maintenance from her former husband for a period of 2 years from the date of birth of such children an amount equal to the sum Mohar or dower agreed to be paid to her a,t the time of her marriage or at any time thereafter according to the Muslim Law and all properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relative of the husband or his friends. These are the entitlements of a Muslim woman on divorce. Sub-section (2) of section 3 lays down when the reasonable and fair provisions and maintenance or the amount of dower due has not been paid or the properties referred to has not been delivered to the divorced woman on her divorce she or anyone duly authorised by her make an application to a Magistrate for an order for payment of such provisions and maintenance dower or delivery of properties as the case may be. Sub-section (3) authorises the Magistrate to make an order directing the former husband to comply with provisions of sub-section (1) of section 3. Sub-section (4) deals with the provisions for enforcement of such order. Sub-section (4) authorises the Magistrate to take an order of payment of maintenance to the relatives of the wife, failing which he may direct the State Wakf Board established under section 9 of the WAKF Act, 1954 or under any other law could pay such maintenance as determined by him. Sec. 5 deals with option to be governed by the provisions of section 125 or 127, Crimial P.C. Sec. 6 deals with power to make Rules. Sec. 7 deals with transitional provision. It lays down that every application by a divorced woman under section 125 or under section 127 of the Crimial P.C. pending before a Magistrate on the commencement of this Act shall notwithstanding anything contained in that Code and subject to the provisions of section 5 of this Act be disposed of by such Magistrate in accordance with the provisions of this Act.