Date of judgement:
29 June 1994
Bench:
Justice D.J. Raju
Parties:
Petitioner - Shamsunnisa Begum
Respondent - G Subban Basha
Issue:
Whether the maintenance order that was passed prior to the commencement of the Muslim Women (Protection of Rights on Divorce) Act of 1986 still stand valid after the enforcement of the act or not.
Facts of the case
The petition for this case was filed under section 482 of CrPC against the order of Additional Sessions Judge, Kurnool (Cri. Petition No. 5 of 1992).
The petitioner was married to the respondent in the year 1972. According to the record available, their marriage took place on 14th May 1992. After five years of marriage, there was disharmony and disagreement between the spouses and, hence, a maintenance case was filed, and the wife was granted rupees 100 per month and gradually it was increased to rupees 250 per month. It shall be noted that the husband was regularly paying the maintenance amount without default. In middle of all this, the Parliament passed a new act called Muslim Women (Protection of Rights on Divorce) Act 1986. The act received President’s assent on 19th May 1986. As a result, to this law coming into force, the wife filed a maintenance case (Case No. 23 of 1989) under section 3 of the act. While the above-mentioned maintenance case was pending the husband filed a Criminal Miscellaneous Petition (No. 996 of 1990) praying for cancellation of maintenance order. The magistrate on 21st November 1991, cancelled the maintenance order from the date of enforcement of the act.
Arguments by the parties
The wife felt aggrieved by the retrospective effect given for the cancellation order. As a result, the wife file Criminal Revision Petition (No. 5 of 1992). The learned Additional Sessions Judge delivered his order on 16th June 1993. While delivering the order, the judge concluded that with respect to the facts of this particular case, the order of maintenance is not liable to be cancelled on the date of enforcement of the act. But the judge also stated that it stands cancelled with effect from 3 months after the divorce was final (14 August 1989) giving due allowance to the Iddat period. Aggrieved by the order of the Sessions Judge, this present petition was filed under section 482 of CRPC.
The counsel for the petitioner contended that the decision of this court in the case of Shaik Raj Mohd. v. Shaik Ameena Bee1, stated that any order for maintenance under section 125 prior to the commencement of this act, is final and valid and it cannot be affected after the enforcement of the act. The counsel also contended that the Magistrate Session Judge was not justified in cancelling the maintenance order. A perusal of the above decision shows that in that particular case the bench was dealing with a very different case where the maintenance order was passed prior to the act. The principle laid down in the decision is not applicable to the circumstances of this present case because in this case there is a change of circumstances and change of status of the parties. The petitioner also contended that as all the amount specified under the provisions of the act are paid, the maintenance order that was passed before under section 125 cannot be cancelled.
Analysis of the judgement
- After a careful analysis of the provisions of the above-mentioned act, it clearly shows that this act has an overriding effect. Section 3 starts with the words - "Notwithstanding anything contained in any other law for the time being in force". This act is also meant to protect the rights of Muslim women who have been divorced from their husbands.
- As the status of the parties changed after 14th May 1989 (due to divorce), the rights of the wife are now governed by the provisions of this enactment. As per the provisions mentioned in section 3 of the act, the wife is entitled to approach the court to seek the relief for a reasonable and fair provision and maintenance for the ‘iddat’ period. Maintenance for the children can also be claimed under this act.
- The wife is also entitled to the amount that was agreed to paid at the time of marriage as dower and also for return of any property that was given to her before or at the time of marriage by her relatives or family members. Sub-section 2 of section 3 of this act also lays down the procedure which has to be followed by the divorced wife to obtain relief under this act. Section 5 of the act also gives an option to the divorced woman to be governed by the provisions of section 125 to 127 of CrPC in spite of this act.
- The court observed that the order passed by the Additional Sessions Judge has clearly took into consideration all the facts and legal provisions and the judge drew the correct conclusions on the materials placed before him in this case. The Sessions Judge rightly modified the process order which was passed in this case and concluded that the order of maintenance which was passed earlier would stand cancelled.
- Ultimately, the court decided that it cannot find any justification to interrupt with the order of the Additional Sessions Judge passed on 16th June 1993 (Cri. Revision Petition No.5 of 1989).
- As a result, the present petition was dismissed, and the petitioner wife is entitled to pursue remedy in maintenance order and obtain appropriate orders. Taking into the consideration that the maintenance order was filed a long time ago, the court also directed the concerned magistrate to dispose the same with efficiency and urgency, within a period of four months from this date.
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