Judgment:
A.S. Tripathi, J.
1. These two revisions, being connected matters are taken up together, and are disposed of by mis common order. Criminal Revision No. 186/1994 shall be the leading case.
2. This revision is filed against the order dated 18th July, 1994 passed by the Sessions Judge of Shivpuri, whereby the order of the learned Trial Magistrate granting maintenance to the petitioner was set-aside. The learned Sessions Judge held that the applications Under Sections 125(3), 127 and 128 of the Code of Criminal Procedure (for short the 'Code') were not maintainable in view of the retrospective effect of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter, referred to as the 'Act').
3. In brief, the facts of the case are that the petitioner was married to the non-petitioner on 22.7.1968 in accordance with the customs of Sunni Muslim at Kolaras in the district of Shivpuri. The non-petitioner had divorced the petitioner on 8.9.1991. Thereafter, the petitioner had moved an application Under Section 125 of the Code before the Judicial Magistrate First Class, Kolaras. The learned Magistrate by his order dated 15.9.1983 allowed the application and granted maintenance to the petitioner at the rate of Rs. 100/- per month from the date of the application.
4. The non-petitioner had preferred a revision against that order which was numbered as Cr.R.No. 43/83 and the then learned Sessions Judge rejected the revision and confirmed the order of the learned Magistrate on 5:9.1984.
5. The petitioner thereafter filed two applications on 6.2.1992 before the learned Magistrate one for realisation of the maintenance already granted and the other for enhancement of the rate of maintenance allowed earlier. These two applications were heard by the learned Magistrate after giving notice to the non- petitioner. The plea taken at that time was that after passing of the Act, no application Under Sections 125, 127 or 128 of the Code could be entertained by any Magistrate.
6. The learned Magistrate after hearing the parties by his order dated 5.11.1993 held that no retrospective effect could be given to the Act. The learned Magistrate directed realisation of the arrears and also allowed the application Under Section 127 of the Code and enhanced the maintenance allowing Rs. 350/- per month. Aggrieved by this order, a revision was preferred by the non-petitioner before the learned Sessions Judge, which was numbered as Cr. R. No. 139/93. The learned Sessions Judge held that the Act had retrospective effect, and therefore, the learned Magistrate had no jurisdiction to entertain any application Under Sections 125, 127 or Section 128 of the Code, and set-aside the order of the learned Magistrate for granting maintenance as also for enhancement.
7. After hearing learned Counsel for the parties Shri Pawan Vijay, for the petitioner and S/shri J.R. Sharma and Jai Prakash Sharma for the non-petitioner and on perusing the record it transpires that there were two applications filed before the learned Magistrate at the time of passing of the impugned order, one for enhancement of the maintenance already granted and the other Under Section 28 of the Code for recovery of the maintenance earlier allowed, before commencement of the Act.
8. Learned Counsel for the petitioner vehemently urged that the Act could not be given retrospective effect and there are judicial pronouncements on this point.
9. The learned Sessions Judge had placed his reliance mainly on the case of Abdul Rashid v. Mst. Farida, 1994 JLJ 381. In that case brother S.K. Chawla, J. had simply dealt with the matter that since the application Under Section 125 of the Code was pending on the commencement of the Act, the same was not maintainable before the Trial Magistrate under the provisions of the Code. The Court had directed that the matter be dealt with so far other claim of maintenance before the date of divorce and the Iddat period was concerned may be taken up before the learned Magistrate, but the maintenance after divorce could not be considered under the provisions of the Code, and the same has to be considered under the provisions of the Act.
10. The question as to whether if the maintenance had already been granted Under Section 125 of the Code and the same had become final even in revision before the commencement of the Act, the same could be enforced by the Magistrate Under Section 128 of the Code was to be considered in this particular case. There is no doubt regarding the fact and the law as established that if any application is pending under the Code on the date of commencement of the Act, the same has to be dealt with according to the provisions of the Act itself and not under the Code. But once the maintenance already granted earlier had become final under the Code before commencement of the Act, whether the same could be enforced Under Section 128 of the Code, is yet to be considered by this Court. This point was not considered by brother S.K. Chawla, J. in the case of Abdul Rashid (supra).
11. Learned Counsel for the non-petitioner placed reliance on the case of Mohammed Yameed v. State of U.P., 1992 Cri LJ 1804, wherein a learned Single Judge of Allahabad High Court held that even an application Under Section 128 of the Code is barred by the provisions of Sections 5 and 7 of the Act to be taken up under the Code, for recovery of the maintenance, even already allowed and became final, before the commencement of the Act. The learned Single Judge in that case had examined the provisions of Sections 5 and 7 of the Act and came to the conclusion that the two are to be conjointly read and even the execution of Section 128 of the Code is barred Under Section 7 of the Act.
12. On the other hand, in the case of Abdul Khader v. Smt. Razia Begum, 1991 Cri. L.J. 247, the Karnataka High Court by its judgment of learned Single Judge held that the Act is prospective in nature. The maintenance already granted earlier which had become final, the right of recovery of the same is not affected by the enforcement of the Act, and Under Section 128 of the Code the same could be recovered by the Magistrate under the provisions of the Code itself.
13. Similarly, a learned Single Judge of Kerala High Court in the case of Mohammed Haji v. Rukiya, II(1987) DMC 495 held that:
'It is always open to a divorced Muslim wife who has obtained maintenance Under Section 125 or enhanced maintenance Under Section 127 to enforce it Under Section 128 so long as Section 7 of the Act does not interdict proceedings Under Section 128 of Cr. P.C. It is not possible to hold that after the commencement of the Act the respondent cannot file the petition for enforcement of the order.'
14. In the case of Hazran v. Abdul Rehman, I (1989) DMC 509, a Single Judge of Punjab and Haryana High Court held that:--
'The result of the above discussion is that the provision with regard to enforcement of the order of maintenance under Section 128 of the Code has not been affected by coming into force of the Muslim Women Act and the applications made before the Magistrate under Section 128 of the Code have to be disposed of in accordance with the provisions of the Code.'
15. In the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, AIR 1986 SC 587, the only point considered was that a divorced Muslim woman is also entitled to maintenance. AIR 1985 SC 945 was followed in that case. This point of applicability of Section 128 of the Code after the commencement of the Act was not considered.
16. In this continuation, learned Counsel for the petitioner placed reliance on a Division Bench decision of the Gauhati High Court in Idris Ali and Ors. v. Ramesha Khatun and Ors., I (1990) DMC 107(DB), in which it was specifically held by the Division Bench of Gauhati High Court in the following words:--
'that consequently there is no hesitation to hold that answer to the question referred to by the learned Single Judge is that if a divorced Muslim Woman approaches the Court of Magistrate for execution of final order already passed under Sections 125 and 127 Cr.P.C. earlier to the New Act of 1986, then she will have a right to get the order executed under Section 128 Cr.P.C. which Section has been excluded from Section 7 of the Act of 1986 and Section 7 of the new Act of 1986 would not take away that right.'
17. On the other hand, learned Counsel for the non-petitioner placed reliance on a Full Bench case of Andhra Pradesh High Court in Usman Khan Bahamani v. Fathimunnisa, AIR 1990 AP 225 (FB)in which it was held that:--
'After the commencement of the Act, provisions of Sections 125 to 128 of the Code have no application, even the order already passed for maintenance could not be executed under the provisions of Section 128 of the Code.
18. Learned Counsel for the petitioner further placed reliance on the case of Abdul Rauf Khan v. Helemon Bibi and Anr., I (1990) DMC 315, in which learned Single Judge of Orissa High Court held that:--
'If an order of maintenance has been passed by a Magistrate Under Section 125 of the Code in favour of the divorced Muslim Woman before the Act came into force and a petition is filed or is pending Under Section 128 thereof for its enforcement after the Act came into force, the enforcement proceeding cannot be barred. To such a petition Section 7 shall have no application and the impugned order therefore cannot be quashed.'
19. At this stage, it is pertinent to quote the provisions of Sections 5 and 7 of the Act.--
'5. Option to be governed by the provisions of Sections 125 to 128 of Act 2 of 1974.--If, on the date of the first hearing of the application under Sub-section (2) of Section 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 Sections 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation--For the purpose 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.'
7. Transitional provisions-- Every application by a divorced woman under Section 125 or under Section 127 of the Code of Criminal Procedure 1973 pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act.'
20. A perusal of Sections 5 and 7 of the Act together indicates that the bar applied to the proceedings under the Code is provided only Under Sections 5 and 7 of the Act. Section 5 simply provides for exercising option by the parties jointly or separately that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code. Under Section 7 of the Act a bar is provided and applications Under Section 125 or Section 127 of the Code are specifically barred to be entertained by a Magistrate under the Code. The same have to be considered only after complying with the provisions of Section 5 of the Act. There is no bar provided for execution of maintenance already allowed before the commencement of the Act Under Section 128 of the Code.
21. As such, the question remains to be decided is as to whether in this particular case when the maintenance was already granted at the rate of Rs. 100/- per month Under Section 125 of Code and that order had become final even in revision and the same was not challenged before the lower Court, then the same could be recovered by way of execution Under Section 128 of the Code.
22. On this point, there are two conflicting decisions, one of the Division Bench of the Gauhati High Court in Idris Ali & Others (supra) holding that even after the commencement of the Act, application Under Section 128 of the Code is maintainable for its recovery, whereas the other one is of Full Bench of Andhra Pradesh High Court in Usman Khan Bahamani (supra) holding that after the commencement of the Act, even application Under Section 128 of the Code for recovery of maintenance which had already become final before the commencement of the Act would not be entertained under the Code.
23. The learned Revisional Court has also referred the cases Mohd. Umar Khan v. Gulshan Begum, 1991 MPLJ 586=II (1991) DMC 15 and Bashir Khan v. Jamila Bee, 1994 MPLJ 159. In those two cases, this point was not considered and even till date, no decision of this Court has been brought to the notice of this Court regarding the maintainability of an application under Section 128 of the Code for recovery of the maintenance already granted earlier which had become final before the commencement of the Act.
24. However, so far as the question of enhancement of the maintenance was concerned it was allowed by the learned Magistrate and set aside by the revisional Court. The same was a matter pending after the commencement of the Act. Therefore, the enhancement of maintenance has been rightly set aside by the revisional Court. For that matter, the parties if so choose, may approach the appropriate Court under the provisions of the Act itself.
25. In view of the two conflicting decisions, one of the Gauhati High Court in Idris Ali and Others (supra) of the Division Bench and the other of Andhra Pradesh High Court in Usman Khan Bahamani of the Full Bench, there is an imperative need for judicial pronouncement on the same point of this High Court by a Full Bench.
26. It is difficult to follow either the Division Bench's decision of Gauhati High Court in the case referred above or to follow the Full Bench decision of Andhra Pradesh High Court in the above referred case for final disposal of these revision petitions so far as the point of recovery of maintenance already granted and which had become final is concerned.
27. I feel it necessary that this question be answered by a Full Bench of this Court so that the legal controversy may be set at rest to be followed by all Courts in this State.
28. Accordingly, lay this case before Hon. the Chief Justice with a request for constituting a Fuji Bench to decide the matter as referred above.
29. Let a copy of this order be placed on the record of Criminal Revision No. 187/1994, which shall govern that revision too.