SALMA BANO Vs. MOHAMMED RAFIQ

JUDGEMENT

(1.) THESE two criminal miscellaneous petitions are directed against the order dated December 14, 1989, passed by the Additional Sessions Judge, Chittorgarh, in Criminal Revision Petition No. 46 of 1987, arising out of the order dated August 7, 1987 passed by the Chief Judicial Magistrate, Chittorgarh granting maintenance.

(2.) THE wife Mst. Salma Banoo filed an application Under Section 125, Cr.P.C. in the Court of the Chief Judicial Magistrate, Chittorgarh, for the grant of maintenance to herself as well as to her daughter Sahana Bano. This application, filed Under Section 125, Cr. P.C. was allowed by the learned Chief Judicial Magistrate and the learned Chief Judicial Magistrate, by his order dated October 27,1984, granted the maintenance of Rs. 300/ - per month both for the wife and her daughter Sahana Bano. This maintenance was allowed with effect from February 9,1983, i.e., from the date of the application. Dissatisfied with the order passed by the learned Chief Judicial Magistrate, awarding the maintenance to Chief Judicial Magistrate,' awarding the maintenance to Salma Bano, the husband Mohammed Rafiq filed a revision petition before the learned Additional Sessions Judge, Chittorgarh. The matter was ultimately compromised between the parties in the 'LOK ADALAT' and the amount of maintenance was reduced from Rs. 300/ - per month to Rs. 200/ - per month, which was made payable on 10th of every month. It was also agreed that Mohammed Rafiq will pay Rs. 2000/ -towards the outstanding maintenance allowance to Mst. Salma Bano on or before November 10,1986. It was further ordered by the LOK ADALT that if the husband Mohammed Rafiq fails to deposit the determined maintenance allowance of Rs. 2000/ - in Court on or before November 10,1986, then Mst. Salma Bano will be entitled to maintenance allowance of Rs. 300/ - per month. The compromise entered into between the parties was produced before the learned additional Sessions Judge, Chittorgarh, which was verified by the learned Additional Sessions Judge. After coming in to force of the Muslim Women (Protection of Right on Divorces) Act, 1986 (hereinafter referred to as 'the Act, 1986'), Mohammed Rafiq, on December 8, 1986 filed an application Under Section 127(3) of the Code of Criminal Procedure for cancellation of the order passed on August 25, 1984. The learned Chief Judicial Magistrate, by his order dated August 7,1987, dismissed the application filed Under Section 127(3) Cr.P.C. by the husband Mohammed Rafiq. Aggrieved with the order dated august 7,1987, passed by the learned Chief Judicial Magistrate, rejecting the application Under Section 127(3) Cr.P.C, Mohammed Rafiq preferred a revision petition before the learned Additional Sessions Judge, Chittorgarh, and the learned Additional Sessions Judge, by his order dated December 14,1989, partly allowed the revision petition and set aside the order of the learned Chief Judicial Magistrate granting maintenance allowance to Mst. Salma Bano, the wife, but, however, maintained the order granting maintenance to the daughter Sahana Bano. It is against this order that the present two petitions Under Section 482 Cr.P.C. have been filed. S.B. Criminal Miscellaneous Petition No. 66/1990 (Salma Bano v. Mohammed Rafiq) has been preferred by the divorced wife against her husband for the grant of maintenance while S.B. Criminal Miscellaneous Petition No. 130/1990 has been preferred by Mohammed Rafiq -the father of Sahana Bano -against the order of grant of maintenance to his daughter Sahana Bano. As both these petitions arise out of the same judgment, I, therefore, propose to decide both these petitions by this common judgment.

(3.) THE point for consideration in S.B. Criminal Miscellaneous Petition No. 66 of 1990 is, the effect of the provisions of Muslim Woman (Protection of Right on Divorce) Act, 1986 (for short 'the Act, 1986') on the orders of maintenance passed under the Act of 1986 came in to force and these orders became final and whether these orders, passed Under Section 125 Cr.P.C. will remain effective even after coming -into force of the Act of 1986. Similar question: whether the provisions of the Act, 1986 are having retrospective operation or whether the orders of maintenance awarded under the Code of Criminal Procedure, necessarily require any modification after coming in to force of the Act, 1986, came -up for consideration before the Division Bench of this Court in the case of Abid Ali v. Rasia Begum 1988 R.C.C. 51, and after considering various authorities on the point and looking to the statements and the objects and the intention for which the Act of 1986 was enacted, the Division Bench of this Court held that 'the Act of 1986 does not contain any saving clause for the right granted or orders passed in favour of the divorced Muslim woman and the Act of 1986 has completely obliterated the right of such woman to get the maintenance. The repeal without saving such right means that such woman had never acquired any such right and in this view of the matter, the said right cannot, now, be enforced Under Section 125(3) Cr. P.C. Therefore, if a Muslim woman is divorced prior to coming in to force of the Act, 1986, in whose favour the order of maintenance has been passed and has become final, or is pending in the revision or in other Court, is being challenged by the husband and if such an order is held to be executable, then it will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act, 1986, for which it has been enacted.'