Mohammad Jalil Khan vs Anwari Begum

M.D. Bhatt, J.

This is the husband''s revision against the granting of the monthly maintenance u/s 125 of the Code of Criminal Procedure, 1973.

Mst. Anwari Begum (non-applicant) admittedly, was married to Mohd, Jalil Khan (applicant) in 1970. After about two years, the wife came to live with her parents; and she gave birth to a female child Ku. Afroz in May, 1972. The wife filed the petition on 30-3-1973 u/s 488 of the Cr. P. C. 1898. against the husband claiming maintenance for herself and also for the female child at the rate of Rs. 250/- per month (Rs. 200/- for herself and Rs. 50/- for her child) on the ground that the husband was neglecting and refusing to maintain them despite his having sufficient means as an employee of the State Bank of India and that, she herself was not possessed of any means for her own maintenance and the for of her child. This petition was resisted by the husband on the ground that humid already divorced the wife on 5-8-19T2: and as such, she was not entitled to any maintenance. The paternity of the child was equally denied. The husband further urged that his monthy salary was hardly sufficient for his own maintenance and that of his seven dependents.

The trial court held that the child Ku, Afroz was the legitimate child, born out of the lawful wedlock of the parties. It was further held that the husband had divorced the wife on 5-8-1972 thus entitling the latter to claim the maintenance. The husband was held to have sufficient means for maintaining the wife and child. The wife herself, however, was held to have no means whatsoever for the said purpose. Accordingly, the learned trial Magistrate, vide his Order dated 9-7-1980, granted maintenance of Rs. 100/- p. m. to his wife and Rs, 50/-to the child, from 30-3-1973 (date of application) to 9-7-80 (the date of Order) and thereafter at the enhanced monthly rates of Rs. 175/- and Rs. 75/- respectively. Hence now, the husband''s present revision,

The leaarned counsel for the applicant-husband has urged before me that the learned trial Magistrate should not have passed the Order u/s 125 of the Cr. P. C. 1973, as he had actually done, inasmuch as, the proceedings for grant of maintenance had been initiated long before the promulgation of the new Code. It is urged in this connection that under the provisions of the old Code (Criminal Procedure Code, 1898), divorce disentitled the wife for any claim of maintenance and, therefore, since, the trial Magistrate had held the factum of divorce to be proved, no maintenance could be granted to the wife in view of this divorce. It is also argued that benefit of the definition of "wife" to in clude even divorced women having, however, been not remarried, as given in Explanation to S, 125 fl> of the repealing Code i. e. Code of Criminal Procedure 1973, could not be available to the non-applicant wife, in face of Section 484(2) of the new Code, relating to "repeal and savings", The learned Counsel for the applicant husband has. however, candidly conceded that he is only challenging the claim of the wife only far maintenance, and that, in the present revision he is not challenging at all, the trial Court''s Order regarding the grant of maintenance to the child Ku. Afroz to any extent whatsoever.

The non-applicant wife''s learned Counsel has urged before me that considering the circumstance that the wife''s petition having been initiated in March, 1973 u/s 4H8 of the old Code and having been decided as late as on 9-7-80 when the old Code had already been repealed by the Code of Criminal procedure of 1973, the wife''s petition u/s 438 of the old Code should be deemed to be converted as a petition u/s 125 of the new Code and in any case, this 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.

I have considered the arguments on both sides and am fully alive to the change for the better in the new Code in the matter of wife''s claim for maintenance. His Lordship Krishna Iyer. S. of the Supreme Court has pertinently observed in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, that Section 125 Cr. P. C, 1973 is a measure of social justice and specially enacted to protect women and children. His Lordship has further observed that "sections of statutes calling for construction by courts are not petrified prints but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance." Law must progress or it must perish in the esteem of man. Interpretation of law must accord with social justice and semantics. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Nova constitution futuris formam imponere debet, non praeteritis (A new law ought to be prospective and not retrospective in its operation). It is also well settled that ordinarily, when the substantive law if altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (See Maxwell on ''Interpretation of Statutes'' 12th Edn. p. 20). That is to say, in the absence of anything in the Act, to say that it is to have retrospective operation it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed (see Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others, ). It may well be remembered that it is the part of judicial prudence to decide an issue arising under a specific statute by confining the focus to that statutory compass as far as possible. Diffusion into wider jurisprudential areas is fraught with unwitting conflict or confusion (see State of Madhya Pradesh and Others Vs. Orient Paper Mills Ltd., and D.R. Venkatachalam and Others Vs. Dy. Transport Commissioner and Others, .

Clause (a) of Sub-section (2) of Section 484 of the Code of Criminal Procedure, 1973 is very clear and unambiguous in its terms; and as such, there is no question of any interpretation of any of its terms and words. The said clause is clear in its intent and object. It is clearly stated that any application, trial...etc. pending immediately before the date on which the Code of Criminal Procedure, 1973 has come into force, shall be continued and disposed of in accordance with the provisions of the Code of Criminal Procedure, 1898. The words of this Sub-clause, unambiguous as they are, do not need any interpretation whatsoever.

Therefore, so far as the present case is concerned, proceedings initiated u/s 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 materia 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. Section 125 ibid broadening the spectrum of "wife" so as to cure 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 might 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 provision 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, now repealed. Non-applicant wife''s prayer to treat the proceedings u/s 488 of the old Code as the proceedings u/s 125 of the new Code is just on humanitarian grounds with no legal sanction behind it; and as such, cannot be accepted.

In so far as, the factor of ''divorce'' is concerned, it stands amply proved from the consistent and corroborative evidence of D. W. 1 (applicant-husband), D. W. 2 Tazdiq Khan, D. W. 3 Siddique Khan and D. W. 6 Kazi Movassir Hessian and also from the Talaknama (Ex. D-1) and Us due intimation by post (Ex. D-4). The non-applicant wife is, thus, indubitably proved to have been validly divorced according to Muslim rites on 5-8t1972, with due intimation to her. The divorce hence, disentitles the wife to claim maintenance for herself u/s 488 of the Code of Criminal Procedure, 1898.

In the result, thus, the husband''s revision has to be partially allowed. Setting aside the trial Court''s that part of Order of maintenance which related to wife, it is directed in modification of the said Order that the wife Mst. Anwari Begum is not entitled to any maintenance u/s 408 of the Code of Criminal Procedure, 1898; as such, her claim in this regard is dismissed. However, that part of the trial Court''s Order u/s 488, Cr. P. C. 1898 which related to the grant of maintenance to the female child is maintained in toto, since the same is no longer challenged by applicant''s learned Counsel, to any extent. It may however, be made clear that this Order will not stand in the way of the opposite party viz, the non-applicant wife in filing a fresh application under the provisions of Section 125 of the Code of Criminal Procedure, 1973, where ''wife'' has been defined to include a "woman who has been divorced by or has obtained divorce from husband and has not remarried" (See Shaikh Jalil Vs. Bibi Sarfunnisa, . If any such application is now filed, it may be disposed of, most expeditiously, in accordance with the new Code.