ABDUL RAUF KHAN Vs. HALEMON BIBI

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure ('Code' for short) praying for quashing the order dated 17 -11 -1986 passed by the learned Sub -divisional Judicial Magistrate, Nayagarh directing the petitioner to deposit arrear maintenance of Rs. 2400/ - which was due to the opposite parties. A few relevant facts may be stated. Opposite party No. 1 Malemon Bibi and opposite party No. 2 Abdul Asak Khan are the wife and son respectively of petitioner Abdul Rauf Khan, an advocate of Nayagarh. The petitioner divorced opposite party No. 1 in 1970 after which opposite party No. 2 the minor son, lived with the mother. The opposite parties claimed maintenance under Section 488 of the old Code in Criminal Miscellaneous Case No. 13 of 1971. Maintenance at the rate of Rs. 50/ - and Rs. 25/ - was awarded in favour of the mother and the son respectively. Subsequently, on account of rise in the cost of living; the opposite parties in Criminal Misc. Case No. 14 of 1979 prayed for enhancement of maintenance under Section 127 of the Code and by order dated 2 -12 -1980 maintenance was enhanced and while opposite party No. 1 was awarded Rs. 150/ - opposite party No. 2 was awarded Rs. 50/ per month. The aforesaid facts remain undisputed.

(2.) ON 23 -12 -1985 the opposite parties filed Criminal Misc. Case No. 58 of 19S5 under Section 128 of the Code stating therein that the petitioner defaulted payment of the maintenance from 1 -12 -1984 to 30 -11 -1985 and was in arrears of a sum of Rs. 2400/ -. Therefore, they prayed for recovery of the said amount by attachment and sale of moveable and immoveable property belonging to the petitioner. In his counter purported to be under Sections 4 and 7 of the Muslim Women's (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 'Act') the petitioner stated that the petition of the opposite parties under Section 125 of the Code was pending. The parties belong to Sunni Sect and are governed by Hanafi School of Mohammedan Law. The marriage between the petitioner and the opposite parties had taken place on 24 -10 -1969 and the divorce was effected according to the local and religious custom on 10 -5 -1970. The divorce was also communicated to opposite party No. I on 17 -7 -1971 and on different dates. After the divorce, opposite party No. 1 received Mahr and as such the divorce became complete and irrevocable. According to Sections 4 and 7 of the Act the petitioner is no more liable to pay maintenance to the opposite parties and the proceeding for recovery of arrear maintenance was liable to be dropped.

(3.) MR . Deepak Misra, learned counsel appearing for the petitioner, relied upon the different provisions of the Act and urged that after coming into force thereof on 19 -5 -1986 the petitioner is no longer liable to pay maintenance to the opposite parties and the latter are free to seek their remedies according to the provisions of Sections 3 and 4 against the appropriate parties. Mr. K.C. Mohanty, learned counsel appearing for the opposite parties, on the other hand, contended that the Act has no retrospective operation either expressly or impliedly. Its provisions do not affect orders of maintenance passed either under Section 488 of the old Code or Section 125 of the Code before it came into force on 19 -5 -1986. The right of maintenance which had already accrued in favour of the opposite parties prior to the Act cannot be extinguished by any of the provisions thereof. In any event, the Act does not provide with regard to maintenance of a son. He specifically pointed out that Section 7 of the Act has no application to a proceeding under Section 128 of the Code and so in any view of the matter, the opposite patties being entitled to arrear maintenance, the recovery proceeding cannot be quashed. From the aforesaid contentions it is apparent that the point which falls for determination is whether the Act or any of the provisions thereof have retrospective operation expressly or by necessary implication so as to extinguish an order of maintenance under Section 125 of the Code already granted in favour of the opposite parties.