Anayato d/o Mohd.Ismail vs Mohd.Iqbal

B.S. Yadav, J.

This is a revised Revision Petition against the order of the learned Additional Session Judge, Bhatinda, dated 1671981 passed in revision, in proceedings under section 488 of the Code of Criminal Procedure, 1898 (hereinafter referred to as old Code).

The facts as gathered from the file are that Mst. Anayato (petitioner) was married to Mohd. Iqbal somewhere in 1963. By that marriage a daughter named Shamim was born on 25th May, 1968. Sometime thereafter husband and wife got estranged. The husband deserted his wife and the minor child. The wife filed an application on 12th October, 1970 under section 488 of the old Code against the husband claiming maintenance for herself and for the minor child at the rate of Rs. 200/ P.M. Vide exparte order dated 2nd June, 1971 Judicial Magistrate Ist Class, Bhatinda, passed against the husband, fixed maintenance at the rate of Rs. 40/ and Rs. 20/ respectively for Mst. Anayato and the minor child.

Aggrieved by the said exparte order Mohd. Iqbal filed on application on 7th June, 1971 for setting it aside. The learned Judicial Magistrate dismissed that application on 4th July, 1973. The husband filed revision which was heard by learned Additional Sessions Judge, Bhatinda. Vide order dated 28th August, 1974, he recommended the revision petition to this Court with the recommendation that order dated 4th July, 1973 be set aside. This court vide order dated 8th May, 1978, accepted the revision and set aside the impugned order dated 4th July, 1973 and the trial Court was directed to decide the case regarding the claim of the wife and her daughter for maintenance in accordance with law.

The husband filed written statement alleging that he had divorced his wife, Mst. Anayato on 8th September, 1970. It was also pleaded that inspite of the divorce, Mst. Anayato continued claiming herself to be his wife and, therefore, he filed a suit for declaration to the effect that she was not his wife and it was decreed on 29th January, 1972. Thus according to him, Mst. Anayato was not entitled to any maintenance from him. The learned trial Court found that the wife had been validly divorced by the husband in accordance with the MohammadanLaw. However it held that in view of section 125 of the Code of criminal Procedure, 1973 (hereinafter referred to as the new Code) divorced wife was entitled to maintenance as she had not been remarried. Accordingly, he fixed Rs. 50/ as monthly maintenance for Mst Anayato and Rs. 30/ for Shamim. Feeling aggrieved against that order, Mohd. Iqbal filed revision petition which was heard by learned Additional Sessions Judge, Bhatinda, who accepted it as far as wife was concerned on the ground that the proceedings were to be continued under the old Code and as Mohd. Iqbal had divorced his wife, Smt. Anayato on 8th September, 1970, she was not entitled to any maintenance after the period of iddat. Accordingly, he disallowed the claim of maintenance of the wife but maintained the order of the learned trial Court so far as it related to the grant of maintenance to the minor daughter. Against that order Mst. Anayato has come to this Court.

The learned counsel for the petitioner does not dispute the husband plea that he had divorced Smt. Anayato on 8th September, 1970 i.e. before she had filed application under section 488 of the old Code. He, however, argued that the proceedings instituted under section 488 of the old Code, could be continued as proceedings under section 125 of the new Code. In support of his contention he has cited Kariunnisa Begum and another v. Khaja Hussain and another 1977 Crl. L.J. (NOC) 257. In that case an order under section 488 of the old Code was passed granting maintenance to a Muslim wife. The wife filed petition claiming arrears of her maintenance. However in the meantime the husband divorced her but did not pay the "mahr" under their personal law. It was contended by the husband that the wife was not entitled to maintenance after the period of iddat as she was no more his wife and that even if she was a "wife" as defined in the new Code, her rights arose only on coming into force of that Code and her remedy was to file a petition under section 125 of the New Code but could not recover the amount of maintenance after iddat period under the order of maintenance. It was held that the wife could take advantage of section 125 of the new Code and claim amounts even before 1st April, 1972 as the new Code did not say that a wife already divorced would be able to get maintenance only from 1st April, 1974 and that it did not mean to giving retrospective operation to the provision of section 125 of the new Code which came into force during the pendency of the wife''s petition for the recovery of arrears under the old order. It is not possible to say what principles of law were discussed in that case. However, that case cannot be taken to mean that the proceedings under section 488 instituted under the old Code could be continued under section 125 of the new Code. In that case order granting maintenance to the wife was passed before the coming into force of the new Code. Section 484(2)(b) of the new Code saves such orders. That provision reads as follows :

"484(1) xxx xxx xxx

(2) Notwithstanding such repeal :

(a) xxx xxx

(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published issued, conferred prescribed, defined, passed or made under the corresponding provisions of this Court;

xxx xxx xxx

As the order of maintenance in that case was in force immediately before the commencement of the new Code, it would be deemed to have been made under the corresponding provisions of the new Code. Under the new Code, divorced wife is entitled to maintenance from her husband till she remains unmarried. The quasi judicial orders made and the sentences passed, which have attained finality and which have created rights in parties, do not have to answer the test of being consistent with the provisions of the new Code. Therefore, the above case is of no help to the petitioner.

In the present case section 482(2)(a) of the new Code will apply. It reads as follows :

"484 (1). xx xx xx

(2) Notwithstanding such repeal :

(a) if, immediately before the date on which this Code comes into force, there is any appeal application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement (hereinafter referred to as the Old Code), as if this Code had not come into force :

Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with the disposed of in accordance with the provisions of this Code;

xx xx xx xx"

As the present proceedings had commenced before the coming into force of the new Code, those have to be conducted in accordance with the provisions of the old Code as if the new Code had not come into force. In this opinion of mine I am supported by Bans Gopal v. Smt. Sarjoo Devi and others, 1982 All. L.J. 423. In that case the wife had brought an application under section 488 of the old Code on 16th November, 1973. It was dismissed in default on 7th June, 1976. Revision was preferred against that order and it was allowed on 31.3.1977 and the case was remanded to the subordinate Court. Thereafter the Magistrate passed an order on 13th November, 1979 allowing maintenance to the wife which order was upheld in revision by he judgment dated 27th February, 1981. The husband then filed miscellaneous application in the High Court. One of the grounds for assailing the order dated 31st March 1977, which according to the husband, amounted to an order of restoration of proceeding while the new Code did not contain any provision for such restoration, was that the proceedings be deemed to be under new Code because by the time the case was remanded, new Code had come into force. It was remarked :

"It would appear, by the date the initial proceedings were dismissed new Cr.P.C. had already come into force. So revision could be entertained only under the new Cr.P.C. Once the order was set aside and a remand was made, the old proceedings before the Magistrate revived. That was proceeding under the old Cr.P.C. When that is the position, the application was to be treated from the angle of its requirement as one under the old Cr.P.C. and the proof that would be required will also to be according to the provisions of the old Cr.P.C. Rights of the parties would not be affected whatever be the position of the revision. The initial proceedings before the Magistrate would, therefore, be governed by old Cr.P.C. and notwithstanding that remand was of a later date when the new Cr.P.C. had come into force."

Reference can also be made to Mohammad Jailil Khan v. Anwari Begum, 1983 H.L.R. 1. In that case the wife had filed a petition under section 488 of the old Code on 30th March, 1973, against the husband claiming maintenance for herself and for the female child. That petition was resisted by the husband on the ground that he had already divorced the wife on 5th August, 1972 and as such she was not entitled to any maintenance. The paternity of the child was also denied. Vide order dated 9th July, 1980 the trial Court hold that though the husband had divorced the wife but she was entitled to claim maintenance. It was also held that the child was the legitimate child, born out of the lawful wedlock of the parties. It granted maintenance at the rate of Rs. 100/ P.M. to the wife and Rs. 50/ P.M. to the child from 30th March, 1973, (date of application) to 9th July, 1980 (the date of order) and thereafter at the enhanced monthly rate of Rs. 175/ and Rs. 75/ respectively. The husband preferred revision petition in the Madhya Pradesh High Court. It was urged on behalf of the husband that the learned trial Court should not have passed the order under section 125 of the new Code as it had actually done inasmuch as, the proceedings for grant of maintenance had been initiated long before the promulgation of the new Code and under the old Code divorce disentitled the wife for any claim of maintenance. On behalf of the wife it was urged that as the new Code had repealed the old Code, her petition under section 488 of the old Code should be deemed to be converted as petition under section 125 of the new Code and in any case, that was necessary in the ends of social justice so that the indigent wife could avail of the benevolent and liberal provisions under the new Code. It was remarked :

"Therefore, so far as the present case is concerned proceedings initiated under section 488 of the old Code'' before the date on which the present new Code of Criminal procedure, 1973 had come into force, were required to be continued and disposed of, in accordance with the provisions of the old Code only. Provisions of section 488 of the old Code are in pari maria with those of the new Code, except that, under the new Code, the divorced wife who had not remarried has also, now, become entitled to maintenance, which she was denied under the provisions of the old Code. This is a substantive change brought about in the new Code, i.e. in section 125 ibid broadening the spectrum of "wife" so as to enure the benefit of maintenance, also to a divorced woman; but this new benefit could be availed of only by the claimants, initiating proceedings under the new Code, and not by those who may have started the proceedings under the provisions of the old Code and continued them as such, even after the repeal of the said Code by the new Code, which does not contain any provisions to extend the benefit of the provisions of the new Code, more particularly of section 125 ibid to the proceedings instituted under the provisions of the Old Code, new repealed. Nonapplican wife''s prayer to treat the proceedings under sections 488 of the old Code as proceedings under section 125 of the new Code is just on humanitarian grounds with no legal sanction behind it; and as such, cannot be accepted."

As a result the husband''s petition was partly allowed. That part of he order of the learned trial Court by which maintenance was granted to the wife was set aside. The remaining part of the order which related to the grant of maintenance to the child was maintained. The above ruling is on all force with the present case.

For foregoing reasons the prayer of the petitioner that the proceedings in the present case should have been continued under the new Code cannot be accepted. Consequently the present petition is dismissed. However, it is made clear that this order will not stand in the way of the petitioner in filing a fresh application under the provisions of section 125 of the new Code where "wife" has been defined to include a woman who has been divorced by or has obtained divorce from the husband and has not remarried. If any such application is now filed, it should be disposed of most expeditiously in accordance with the new Code.