Munni Begam Vs. Abdul Satar - Court Judgment

S.S. Jha, J.

1. Both these revisions have been referred by the learned Single Judge to determine the question whether the maintenance granted to a Muslim wife under the provisions of Sections 125 to 128 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') can be claimed after the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the 'Act') came into force

2. The Act was brought into force by Act No. 25 of 1986 after the judgment of the Supreme Court in the case Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945. The Supreme Court in this case held that a Muslim woman is entitled to the provisions of Section 125 of the Code. The decision led to some controversy in relation to the obligation of Muslim husband to pay maintenance to the divorced wife. Therefore, the Act was brought into force whereby it was provided that a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of 'iddat' by her former husband and the payment of maintenance by husband was limited.

3. Section 7 of the Act is reproduced below :

'Transitional provisions-

Every application by a divorced woman under Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 (2 of 1974), 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.'

The section provides that every application by a divorced Muslim wife under Section 125 or Section 127 of the Code pending before the Magistrate on commencement of the Act, shall notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by a Magistrate in accordance with the provisions of this Act.

4. In the stated facts of the case, the maintenance under Section 125 of the Code was awarded before the commencement of the Act. Counsel for the petitioner submitted that after the Act came into force the proceedings for recovery of the maintenance amount under the provisions of Section 128 of the Code are barred. Learned Counsel for the petitioner further submitted that the intention for bringing the Act would be frustrated if the order of maintenance is enforced under the provisions of Section 128 of the Code.

5. Counsel for the petitioner placed strong reliance upon the case of Usman Khan Bahamani v. Rathimunnisa Begum, AIR 1990 AP 225 (FB), and submitted that in view of the Full Bench's decision the provisions of Sections 125 to 128 of the Code are not applicable even if the order is already passed for maintenance and could not be executed under the provisions of Section 128 of the Code.

6. This question came up for consideration before other High Courts also.

7. In the case of Abdul Khader v. Smt. Razia Begum, 1991 Cri. LJ 247, the Karnataka High Court took a view that any rights acquired by the wife for recovery of maintenance prior to Act are not affected by the enforcement of the Act and the rights can be executed under the provisions of Section 128 of the Code.

8. The Allahabad High Court in the case of Mohmmad Yameed v. State of U.P., 1992 Cri. LJ 1804, held that on a combined reading of the provisions contained in Sections 3, 4 and 7 of the Act, it transpires beyond doubt that a divorced Muslim woman cannot maintain her application under Section 125 of the Code or under Section 127 or even get execution of the order under Section 128 of the Code. It was further held that once a married muslim assumes the character of a 'divorced woman' the provisions of the Code will apply only to the extent permissible under Section 4 of the Act. This may result into hardship but then the purpose of the law must be carried to its logical end. Once this is so, a divorced Muslim woman loses her right to enforce an order passed even prior to the enforcement of the Act because of the non obstante clause used in Section 3 as also in Section 7 of the Act. It was held that under these circumstances, a divorced Muslim woman cannot claim execution of Section 125 maintenance order of the Magistrate under the provisions of the Code by moving an application under Section 128 of the Code.

9. However, other High Courts took a contrary view. In view of the conflicting judgments of different High Courts, the case was referred to the larger Bench by the Single Bench.

10. In the case of Bashir Khan v. Jamila Bee, 1994 MPLJ 159, the wife was divorced after the grant of maintenance under the provisions of Section 125 of the Code and in these circumstances, the Court held that the proceedings under Section 128 of the Code are not barred by the provisions of Section 7 of the Act.

11. In the case of Abida Begum and Anr. v. Shafi Mohammed, 1996 MPLJ Note 14, it is held that the order of the Sessions Judge setting aside the order of the Magistrate granting maintenance is erroneous. The cumulative effect of the provision of Sections 5 and 7 of the Act which came into force on 19.5.1986 is that even the application filed under Section 125 or 127 of the Code, prior to the commencement of the Act and pending on the above date of commencement, shall be disposed of by the Magistrate in accordance with the provisions of the Act. The provisions of Sections 125 to 128 of the Code would be applicable to the proceedings filed under Section 3(2) of the Act. The correct interpretation of Section 7 of the Act is that the provisions of Section 125 of the Code prior to coming into force the Act of 1986, would continue to remain valid and enforceable even after the commencement of the Act. Any other interpretation would frustrate the very purpose of enacting the Act.

12. However, another Single Bench in the case of Noorunnisha Maqsood Ahmad v. Maqsood Ahmad Haji Hafiz Abdul Wahid, I (1995) DMC 385=1994 PLJ 701, has held that the wife was divorced on 8.8.1990 and the application under Section 3 of the Act claiming maintenance was filed on 14.81991, the provisions of the Act will be applicable as the application was filed after the commencement of the Act.

13. The Kerala High Court in the case of Mohammed Haji v. Rukiya, II (1987) DMC 495, has 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 Code. It is not possible to hold that after the commencement of the Act the respondent cannot file the petition for enforcement of the order, hardly there is any ground to interfere.

14. Considering the above judgments there is no conflict of opinion that the order passed under Section 125 of the Code prior to commencement of the Act can be enforced under Section 128 of the Code as the execution of the order is not saved or prohibited by Section 7 of the Act.

15. The Full Bench judgment of Andhra Pradesh High Court in the case of Usman Khan Behamani (supra), has held that a Muslim wife is entitled to maintenance during the period of Iddat as defined in Section 2(b) of the Act. It is further held that in view of the definition, there is nothing in this section which can be read to mean that the husband is liable to make reasonable and fair provision and maintenance beyond the period of Iddat. Considering the background of the case, it was held that a Muslim wife is entitled to maintenance under the Muslim Law only during the period of Iddat and it was further held that the provisions of Sections 125 to 128 of the Code have no application after the enforcement of the Act. In para 42 by majority it was held that the provisions of Sections 125 to 128 of the Code are not applicable after the Act came into force. However, Bhaskar Rao, J. recording his minority note, considering the object and reason of the Act and the provisions of Section 7, held that the Act is retrospective and not prospective and is applicable to the pending application under Section 125 or 127 of the Code. The Act has not prohibited enforcement of maintenance already granted prior to commencement of the Act.

16. The Act was passed after the judgment of the Supreme Court in the case of Mohd. Ahmad Khan (supra). While this Act was enacted, the Legislature was fully alive to the situation and controversy amongst Muslim Society. The Act was passed by the Legislature after considering all the aspects. The statement and object of the Act is reproduced below :

'This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.'

17. The intention of the Legislature is to be gathered from the words of the Statute. From the object of the Act, it is apparent that the Legislature was fully alive to the situation and after considering the facts Section 5 was introduced in the Act which provides that :

'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 Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose such application accordingly.'

The parties governed by the Act are given an option to get their cases decided under the Code.

18. Keeping in mind the provisions of Section 5 of the Act and Section 7 which relates to transitional provisions, pending application by a divorced Muslim woman under Section 125 or 127 of the Code on the commencement of the Act shall be governed by the Act.

19. Though the Legislature has made any rule in respect of the applications already decided, but the applications much were already decided have not been saved by Section 7 of the Act. The intention of the Legislature is clear and unambiguous. Since the Legislature has not said anything in respect of the application already decided, it will not be proper to hold that application for maintenance under Section 125 or Section 127 of the Code already decided, shall be governed by the Act. It is basically the intention of the Legislature that provides the lever for purposes of interpretation of any Statute. No doubt, there are several source to find out the intention which are divided into, (i) external aids; and (ii) internal aids.

20. The Preamble of the Act reads as under :

'An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto.'

Thus the Act is intended to protect the rights of Muslim women on divorce. The question of protecting the right arises only on its recent acquisition and that too when it is under a threat of erosion. So far as the question of payment of maintenance for the Iddat period is concerned, there is no dispute in that regard. It was not a recent acquisition nor it was under threat of erosion at any time earlier to the making of the present legislation. In Section 5 of the Act, the parties are given option to be governed by Sections 125 to 128 of the Act. Therefore, it is simply a question of payment of maintenance for the iddat period truly intended by Section 3(1)(a) and nothing more. Neither the Legislature would have wasted its breath by incorporating the liability of making a provision reasonable and fair, apart from paying maintenance in Section 3(1)(a), nor would it have allowed Section 5 to remain otiose-on the Statute since no Muslim former husband with minimum commonsense would opt for governance by the provisions of Sections 125 to 128 of the Code in the absence of any corresponding or balancing liability cast on him by one or other provision in the Statute.

21. It is equally important to take note of Section 4 of the Act, which is. reproduced below : .

'Order of 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 remarried 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 need 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.

xxx xxx xxx xxx xxx xxx (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in Sub-section (1) or such relatives or any one of them have no 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 of Sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under Section 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-section (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.'

22. Thus the Act omits the Word 'provision' from the term 'a reasonable and fair provision and maintenance'- The liability under Section 4 either of the relatives or of the Wakf Board is just to pay reasonable and fair maintenance. Section 4 does not contemplate making of fair and reasonable provision in contradistinction from Section 3 of the Act.

23. Section 3 of the Act provides that a divorced Muslim woman shall be entitled to a reasonable and fair provision of maintenance to be made and paid to her within iddat period by her former husband. However, Section 4 specifically omits the words 'provision' from the term 'a reasonable and. fair provision and maintenance'. The liability under Section 4 of the Act is either of the relatives or of the Wakf Board just to pay reasonable and fair maintenance. Since different intentions have been disclosed by the Legislature in Sections 3 and 4 of the Act, it can safely be gathered that while enacting Section 5, the Legislature was fully alive to the provisions of Sections 125 to 128 of the Code. The parties were free to opt to be governed by Sections 125 to 128 of the Code. Thus the intention of the Legislature is clear and its plain and simple reading would mean that the Legislature has not included Section 128 of the Code in Section 7 of the Act. Therefore, the execution under Section 128 of the Code is not prohibiting by the Act.

24. To sum up, we hold as under :

'The provisions of Section 7 of the Act do not prohibit the proceedings under Section 128 of the Code to enforce any order under Section 125 or 127 of the Code passed prior to enforcement of the Act.'

Reference is answered accordingly.

25. The revisions be placed before the Single Bench for their disposal.