Judgment:
ORDER
1. Petitioner is the husband. First Respondent is the wife. Second, Third and Fourth respondents are minor children of the petitioner and the first respondent. Petitioner and first respondent were married according to the Mohammedan custom on 4-5-1975. Petitioner divorced the first respondent under Mohammedan Law on 13-10-1984. It is also not in dispute that subsequent to the pronouncement of 'Thalak' and issue of notice in this regard, the first respondent filed a petition under S. 125 of the Code of Criminal Procedure claiming compensation at the rate of Rs. 200/- in respect of each of the respondents as monthly maintenance.
2. The learned Magistrate passed an order on 27-3-1987 directing the payment of maintenance. Being aggrieved by the order dated 27-3-1987, the petitioner preferred a Criminal Revision Petition No. 360/1987 before this Court. The matter was disposed of by this Court on 18-7-1988 by remitting the matter to the learned Magistrate for fresh disposal after giving an opportunity to the petitioner to cross examine the first respondent the trial Court held that the petition under S. 125, Cr.P.C., was maintainable and directed that the first respondent is entitled for maintenance at the rate of Rs. 200/- p.m. and respondents 2 to 4 are entitled for maintenance at the rate of Rs. 150/- p.m.
3. Petitioner, being aggrieved by the order of the learned Magistrate, has preferred this Criminal Revision Petition. The main contention of Mr. Ramesh, learned counsel for the petitioner is that Muslim Women (Protection of rights on Divorce) Act of 1986 (Central Act No. 25 of 1986) (hereinafter referred to as 'amending Act') which came into force on 19-5-1986 would not entitle the respondent to claim maintenance from the petitioner after the divorce of a Muslim woman.
4. Mr. Ramesh, learned counsel for the petitioner took me through the dates in chronological order and stated that these dates have a bearing on his legal submissions. The following dates are relevant :
------------------------------------------------------------------------ '1. 13-10-1984 Petitioner pronounced Thalak and the same was communicated in writing to RPS No. 1. 2. 9-11-1984 R-1 preferred a petition u/s. 125, Cr. P.C. claiming maintenance. 3. 23-4-1985 Date of Judgment of Supreme Court in Shahabanu case. 4. 19-5-1986 Central Act No. 25/1986 into force. 5. 27-3-1987 Order of Trial Court granting maintenance. 6. 12-6-1987 Cr. R.P. No. 360/87 preferred by the petitioner. 7. 12-6-1987 I.A. in Criminal Revision Petition. 8. 18-7-1988 C.R.P. allowed and remanded. 9. 13-1-1992 Cr. R.P. against the order dated 13-1-1992 of IIIrd Addl. C.J.M. Mysore in Crl. Misc. No. 264/84 granting maintenance under Sec. 125, Cr.P.C.'------------------------------------------------------------------------
In the back ground of the above facts, learned counsel for the petitioner drew my attention to S. 4 which reads as follows :
'4. Order for payment of maintenance -
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.
Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her :
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as, the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-sec. (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-sec. (1), the Magistrate may, by order, direct the State Wakf Board established under S. 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-sec. (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.'
5. It was strenuously contended that S. 4 of the amending Act will override the provisions of S. 125 of the Cr.P.C. unless it can be shown that both the parties had exercised their options to submit themselves to the jurisdiction of Ss. 125 to 128 of the Cr.P.C. in accordance with S. 5 of the Act. Section 5 reads as follows :
'5. Option to be governed by the provisions of Ss. 125 to 128 of Act 2 of 1974. If, on the date of the first hearing of the application under sub-sec. (2) of S. 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Ss. 125 to 128 of the Cr.P.C. 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation - For the purposes of this section, 'date of the first hearing of the application' means the date fixed in the summons for the attendance of the respondent to the application.'
6. Learned counsel for the petitioner drew my attention to S. 5 of the Act and submitted that no option was exercised by the petitioner and therefore the respondent cannot take advantage of S. 5. He also brought to my notice S. 7 and submitted that only matters pending before the Magistrate will be governed by S. 5 of the amendment. In other words, he submitted that even those cases which are pending before the learned Magistrate will be subject to S. 4. In this particular case, the first order granting maintenance by the trial Court was on 27-3-1987, while the amending Act came into force as early as 1986 and therefore. Mr. Ramesh, learned counsel for the petitioner vehemently submitted that the amending Act will apply to the facts of this case and the learned Magistrate cannot order maintenance except in accordance with Ss. 3 and 4 of the Act. He submitted that the Court is liable to set aside the order of the learned Magistrate in Criminal Miscellaneous Petition No. 264/1984 on the file of the III Addl. Chief Judicial Magistrate, Mysore.
7. Learned Magistrate in his order relied on a judgment of this Court, reported in Abdul Khader v. razia Begum (ILR 1990 (3) Kar 3109) : 1991 Cri LJ 247 (Kant) and held that notwithstanding Ss. 3 and 4 a divorced unmarried Muslim woman would be entitled to the maintenance under S. 125 of the Cr.P.C. and accordingly ordered maintenance notwithstanding the fact that the respondent was a divorced Muslim woman.
8. The judgment reported in ILR 1990 (3) Kar 3109 : 1991 Cri LJ 247 (Kant) deals with essentially three questions :
(1) Whether the Act is retrospective or prospective
(2) Whether the provisions of the Act defeat the vested rights acquired by the respondent to recover maintenance from the petitioner under the Order dated 20-3-1985
(3) Whether, even if it is held that the Act is prospective in nature, the provisions contained in S. 4 of the Act would be attracted to the case of the respondent in the matter of her right to claim maintenance.
His Lordship answered the above question as under :
(1) The Act is prospective;
(2) In the negative; and
(3) In the negative.
This was a case where the order of the learned Magistrate was passed prior to 19-5-1986. This case dealt entirely with the proposition of law with respect to a case where a statutory right prior to 1986 crystallized into a vested right before 19-5-1986 coming into force the amending Act.
It is sufficient to extract the conclusive part of the judgment which is at para 71 and it reads as follows :
'71. I have already held that the Act is prospective in operation. By 19-5-1986 the respondent had acquired a vested right to claim maintenance from the petitioner under the order dated 20-3-1985. That vested right having not been taken away by the provisions of the Act, she would be entitled to enforce the order of maintenance so long she remains without remarrying and is unable to maintain herself. The fact that she was divorced by the petitioner after 19-5-1986 cannot make the provisions contained in S. 4 of the Act applicable to her case.'
9. In that view of the matter, a reference has also been made to a decision of a Full Bench in Usman Khan Bahamani v. Fathimunnisa Begum : AIR1990AP225 . Where the Full Bench has held that a divorced Muslim Woman cannot claim maintenance under S. 125 of the Cr.P.C. from her former husband after passing of the amendment Act No. 25 of 1986.
10. With great respect I entirely agree with the reasonings given in the judgment reported in : AIR1990AP225 . As stated earlier the judgment reported in : ILR1990KAR3109 clearly makes a distinction with respect to the orders passed by the learned Magistrate which came into force before the amendment and the orders passed by the learned Magistrate which came into force after the amendment. Those orders which were passed after the amendment will be bound by the provisions of Ss. 3, 4, 5, and 7 of the Act of 1986.
11. In the instant case, as stated earlier, the order passed by the learned Magistrate was on 27-3-1987 which was passed after the amendment which came into force on 19-5-1986. Consequently, the order passed by the learned Magistrate is without application of mind with respect to the Central Amendment Act No. 25 of 1986 and is contrary to the provisions of Central Amendment Act No. 25 of 1986.
12. In that view of the matter the order of the learned Magistrate in Criminal Miscellaneous No. 264 of 1984 is set aside as being contrary to the amending Act No. 25 of 1986. However, Ist respondent is not precluded from approaching the Court for any relief within the provisions of the said Act.
With this observation the Criminal Revision Petition is allowed.
13. It is stated by the learned counsel for the the petitioner that a sum of Rs. 7,000/- has been deposited in the trial Court pursuant to the order dated 27-2-1992. The learned counsel for the petitioner submits that he has no objection for payment of Rs. 3,500/- as excreta to the respondent. The balance of Rs. 3,500/- will be returned to the petitioner on an application made to the trial Court. The respondent is at liberty to withdraw the amount of Rs. 3500/- without furnishing surety.
14. Revision allowed.