Md. Yunus vs Bibi Phenkani @ Tasrun Nisa and Another

Anand Prasad Sinha, J.—The husband is the petitioner. This application is directed against the impugned order dated 2.4.1983 in Misc. Case No. 40 of 1979 filed by the petitioner u/s 125 (4) (5) and 127 (2) (3) (b) of the Code of Criminal Procedure (hereinafter to be referred to as the Code). The opposite party who happened to be the wife of the petitioner had filed a petition u/s 125of the Code in the court of the learned Sub-divisional Judicial Magistrate, Sikrahana at Motihari claiming maintenance of Rs. 400/- yer month for herself and his son Mumtaz (Opp. Party No. 2). She has alleged that she is the legally wedded wife of the petitioner and Mumtax was the son. The wife had claimed that the petitioner had contracted another marriage and was living with the second wife. The Opposite Party was being neglected and she was unable to maintain her self.

The petitioner had filed a show cause stating therein that he had already divorced the opposite party-wife and she was a woman of loose character. Further the petitioner has claimed that he had paid downer debt to the opposite party. The petitioner has disclaimed Mumtaz to be his son. He has also stated that after divorce he had got a second marriage.

It has been also alleged that the opposite partywife was having business and was earning about Rs. 500/- to Rs. 600/- per month It appears that the claim of the parties had been adjudicated and by an order dated 26-7-1980 it had been held that the said divorce became effective atleast from the date when the petitioner had filed his show cause. The learned Magistrate had directed to pay Rs. 200/ per month as maintenance. The learned court below has held that Mumtaz was not entitled for any maintenance. Thareafter the petitioner had filed title suit No. 104 of 1980 in the court of the Munsif, Sikrahana at Motihari for a declaration that the marriage in between the petitioner and the opposite party was dissolved in January, 1959 and as such the order of maintenance is illegal and against the law.

The wife opposite party had appeared and she had also filed her written statement. She had not accepted the fact of divorce. However, the learned Munsif by his judgment and order dated 31.1.1983 had decreed the suit declaring that the marriage between the petitioner and the opposite party had been dissolved in the year 1959. Thereafter, the petitioner had filed an application u/s 125 (4)(5) and 157 (2)(3)(b) of the Code on 3.3.1983 in the court of the learned Magistrate to cancel the order of maintenance dated 26.7.1980 in view of the decision of the Civil Court. The wife had filed rejoinder that she had filed already an appeal against the order of the Munsif and, as a matter of fact, at the time of disposal of the petition of the petitioner the appeal was pending.

The learned Magistrate on consideration of the facts and circumstances has opined that since the appeal was pending, there was no occasion to cancel the order for payment of maintenance.

Learned Counsel Mr. Wasi Akhtar appearing on behalf of the petitioner has mainly contended that in view of the new enactment being the Muslim Woman (Protection of Rights on Divorce) Act, 1986 (hereinafter to be referred to as the Act) the entire situation has now changed making the opposite party not entitled for maintenance, as claimed.

Before I enter into the application of law on the facts of this case, I would like to say a few words with regard to the Act. The Act which is Act No. 23 of 1986 has been enacted to protect the rights of Muslim woman who have been divorced by of have obtained divorce from their husbands. This Act has come into force on the 19th May, 1986 after receiving the assent of the President of India published in the Gazette of India, Extraordinary Part II. The scheme of the Act is complete in seven sections. The relevant is section 2which defines ''divorced woman and ''iddat period'' which are essential for the disposal of this application. Section 3of the Act contains non-obstante clause and has got four sub-sections. Subsection (1) is substantive and that prescribes the entitlement of a divorced woman, section 3 (1) (a) has made a divorced woman entitled to get maintenance from her former husband for the Iddat period only. Section 3 (1)(b) prescribes the right of the divorced woman to claim maintenance for her minor children for a period of two years from the respective dates of birth of such children. Section 3 (1) (c) of the Act prescribes that a divorced woman shall be entitled to get an equal amount equal to the sum of Mohar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law. Section3 (I)(d) entitles a divorced woman to get all the properties given (sic)o her before or at the time of marriage or after marriage by her relations or friends or the husband or any relative of the husband or his friends. Section 3 (2) is'' procedural in nature-(sic)t prescribes the procedure for riling application by the divorced woman or any one duly authorised by her to a Judicial Magistrate of the 1st Class exercising a jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced woman resides for an order for payment of such provision and maintenance, Mahar or dower or the delivery of the properties as the case may be. Sub-section (3) of section 3of the Act is also procedural. It pro-(sic)ides the nature of the order to be passed by the Magistrate on proof of certain conditions directing the former husband to pay the maintenance, Mahar or dower or delivery of the properties as the case may be. Such order is to be passed within one month from the date of the filing of the application but the period may be extended for reasons to be recorded if the Magistrate finds it not practicable to dispose of the application within one month. While passing the order, the Magistrate is to have regards to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband. Section 3 (4)of the Act provides the procedure for the execution of the order passed under sub-section (3) if the order is not complied with by the former husband without sufficient cause. This provision is similar to the provision provided u/s 125 (3)of the Code.

Section 4of the Act is both substantive and procedural. It entitles a divorced woman who has not re-married and is not able to maintain herself after the Iddat period, to claim maintenance from her certain relatives who would be entitled to inherit her properties on her death according to Muslim law. The relatives are in the order of preference children, the parents and other relatives. The Magistrate will have regard to the needs of the divorced woman, the standard of life enjoyed by her during marriage and the means of such relatives. In case of relatives having no means or not able to provide maintenance to the divorced woman, a direction may be given u/s 4 (2)of the Act to the State Wakf Board established u/s 9of the Wakf Act, 1954, functioning in the area in which the woman resides to pay such maintenance as determined by the Magistrate under sub-section (1) or as the case may be to pay the shares of such of the relatives who are unable to pay at such period as may be specified in the order.

Section 5of the Act prescribes that the parties may opt to be governed by the provision of section 125 to 128of the Code and also provides the procedure to be followed for such option i.e. to title such affidavit or declaration in this regard in the court hearing the application. Section 6of the Act powers the Central Government to frame rules for carrying out the purpose of the Act by notification in the official Gazette and that has already been framed. Section 7of the Act prescribes the mode of disposal of application filed u/s 125or 127of the Code pending before (sic) Magistrate to be disposed of in accordance with the provisions of the Act subject to the provisions of section 5of the Act.

It would be relevant to make a comparative study of the provisions of this Act with the provisions of Chapter IX containing section 125 to 128of the Code.

u/s 125of the Code, wife including a divorced woman who had not remarried, parents, legitimate or illegitimate minor child, or major child by reason of any physical or mental abnormality or injury unable to maintain itself of all religion are entitled whereas in this Act only Muslim divorced woman, who has not re-married and child upto the age of two years, are entitled to get maintenance. Under the provisions of section 125of the Code, a divorced Muslim woman could get maintenance until she was re-married; whereas under this Act such woman can get maintenance only upto Iddat period. u/s 125of the Code divorced Muslim woman could get maintenance upto Rs. 500/- per month only but no limit is prescribed under the Act. u/s 125of the Code application could have been filed for the grant of maintenance only but under the provision of the Act application can be filed for payment of an amount equal to the sum of Mahar or dower agreed to be paid to her at the time of her marriage or at any time, thereafter, according to Muslim Law and also for the properties given to her at the time of marriage or after her marriage by her relatives or friends or the husband or any relations of the husband or his friends.

Under the provisions of the Code, an application u/s 125of the Code could have been filed before a Magistrate of any District where he is or where he or his wife resides or where he last resided with his wife or as the of case may be with the mother of the illegitimate child but under the provisions of this Act an application can be filed before a Magistrate of the area where the divorced woman resides i.e. the residence of the divorced woman will be a selective factor for the purpose of jurisdiction for filing an application by divorced woman. u/s 125of the Code, a wife living in adultery was not entitled to get maintenance but this is no ground to refuse maintenance to her. u/s 125of the liability to maintain a divorced wife lies on the husband only but under the provisions of the Act the husband is liable to maintain his wife who has been divorced only upto Iddat period and thereafter certain relatives of the divorced woman and on their failure the State Wakf Board is liable.

An order passed u/s 125of the Code in the changed circumstance can be varied or cancelled u/s 127of the Code by the Magistrate but there is no provision under this Act for the cancellation of the order passed. The order passed u/s 125of the Code is executable but under the provisions of this Act the order passed u/s 3 (3)of the Act only are executable. There is no provision empowering a Magistrate in case of non-compliance of the order passed u/s 4of the Act to execute the said order.

Striking feature would be that there is no saving clause provided under this Act by which any order passed in favour of a divorced Muslim woman u/s 123of the Code could be validated or liability created in the husband in this regard could be held valid or enforceable.

Section 125of the Code entitled a divorced woman to get maintenance from her husband until she is re-married Section 3 (1) (a) of the Act curtailed her said right to get maintenance till the period of Iddat only. In this view of the matter section 125of the Code so far as it had created a right to a Muslim Divorced woman to get maintenance from her husband untill she is re-married, has been impliedly repealed, So far as the right to get maintenance after the period of Iddat is concerned by this Act. This being so, a Muslim divorced woman is no longer entitled to get maintenance from her former husband after the period of Iddat as there is no saving clause in this Act. Having lost her right to get maintenance from her former husband after the period of Iddat (sic) has lost her remedy also as provided u/s 125 (3)of the Code to enforce her said right in case her former husband fails without sufficient cause, to comply with the order of Maintenance. Thus if a divorced Muslim woman files a petition u/s 125 (3)of the Code, which, in substance, is a penal provision, it will be an action without remedy. The Act, as indicated above, does not contain any saving any right created or orders passed (sic)n favour of a Divorced Muslim Woman. Thus the Act of 1986 has completely obliterated the right of such woman to get maintenance. The repeal without saving such right means that such woman had never such right and in this view of the matter the said right now can not be enforced u/s 125 (3) of the Code. Thus, if a divorced Muslim Woman divorced prior to coming into force of the Act, in whose favour order of maintenance has been passed and have become final or is pending in revision or other court being challenged by the husband is allowed to get maintenance, it will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act for which it has been passed.

Now I proceed to apply the Jaw on the facts stated and discussed above. In the case of Lallu Prasad & another v. State of Bihar & others (A.I.R. 1976, Patna, 137) it has been laid down that the very purpose of non obstante clause is that the provision shall override any other provision and other provision shall not be of any consequence. In the case of Sarwan Singh and another v. Kasturi Lal (A.I.R. 1977 Supreme Court, 265) it has been laid down that when two or more laws operate in the same field each containing a non-obstante clause stating that its provisions will over ride those of any other law, the conflict has to be decided with reference to the object and purpose of the laws-where the newly introduced Act is made nugatory on account of the provisions of the existing Act, the newly introduced Act is to prevail. The later enactment must prevail over the earlier.

In the case of R. P. Jain & another v. State of Bihar (1977 Cr. L.J., 1758) it has been held that if repealing Act or Ordinance does not save a right or remedy under the repealing Act or Ordinance, both right and remedy are lost. In the case of United Provinces v. Mt. Atiqa Begum & others (A. I. R. 1941 F.C. 16) it has been held that when two Acts are clearly inconsistent with or repugnant to each other, the former will be deemed to have been impliedly repealed or amended as the last expression of the will of the legislature must always prevail. In addition, it is well supported from the following expression.

if an Act expired or was repealed it was regarded in absence of provision to the contrary as having never existed."

Maxwell 12th Edition, page 16.

In the case of Kamakhya Narain Singh v. State of Bihar (A.I.R. 1981 Patna, 236) it has been laid down that the provisions of the Bihar & Orissa (No. 13 of 1952) Municipal Act and the Bihar Municipal Corporation Act having the same purpose and object cannot work in the same field and, therefore, the former Act must give way to the subsequent Act; meaning there by that the Bihar & Orissa Municipal Act shall be deemed to have been repealed by the Corporation Act in the area where it has been enforced. Therefore, on consideration to the entire facts and circumstances, now the opposite party has not become entitled for maintenance what-so-ever and thus her application for grant of maintenance is rejected and this application is allowed.