Shamshad Begum Vs. Md. Noor Ahemad Khan - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - this clearly goes to show that the provisions with regard to enforcement of maintenance orders made under the cr. hold good even after coming into force of the muslim divorce act. is not enforceable after coming into force of the said act, the learned additional sessions judge, sambalpur clearly erred in law in vacating the order of the learned magistrate.orderr.k. patra, actg. c.j. 1. is enforcement of the order of maintenance made under section 125 of the code of criminal procedure, 1973 any way affected on coming into force of the muslim women (protection of rights on divorce) act, 1986, this is the short question that arises for consideration in this revision filed by a divorced muslim woman.2. facts. the petitioner is a divorced woman who married to the opposite party according to the muslim law. she filed criminal misc. case no. 253 of 1983 under section 123 of the code of criminal procedure, 1973 against the opposite party in the court of s.d.j.m., sambalpur. by order dated 24-4-1985 the learned magistrate allowed her case on contest directing the opposite party to pay her maintenance at the rate of rs. 160/- per month from 24-4-1985. as the amount was not paid, she filed execution caseno. 137 of 1990 in the court of s.d.j.m., sambalpur for realisation of a sum of rs. 19207- towards maintenance for the period from 30-7-1989 to 30-7-1990. the learned magistrate after hearing both parties, by order dated 20.2.1992 allowed the execution case directing the opposite party to pay her the said amount within a period of one month. against the said order, the opposite party filed criminal revision no. 31/30 of 1992 in the court of the learned additional sessions judge, sambalpur who by order dated 6-9-1993 set aside the order of the learned magistrate holding that after coming into force of the muslim women (protection of rights on divorce) act, 1986, the order of the learned magistrate is not enforceable. hence this revision.3. chapter ix of the code of criminal procedure, 1973 (hereinafter referred to as the 'cr. p.c.') consists of four sections and it deals with order for maintenane of wives, children and parents. sub-section (1) of section 125, cr. p.c. empowers the magistrate to grant monthly allowance to a wife, children and parents on proof of neglect or refusal. sub-section (3) thereof authorises such magistrate to realise the amount of maintenance. section 126 deals with the procedure to be followed by the magistrate in the maintenance proceeding. under section 127 the magistrate may alter the allowance on proof of a change in the circumstances of the person receiving the maintenance. section 128 empowers a magistrate to realise the amount of maintenance at any place where the person against whom it is made may be for the time being. the muslim women (protection of rights on divorce) act, 1986 (hereinafter referred to as 'the muslim divorce act') has come into force with effect from 19-5-1986. on careful consideration of the provisions of the muslim divorce act it would appear that sections 3 and 4 of the said act contains a non obstante clause in general terms. section 5 of the muslim divorce act gives option to both parties to elect to be governed by the provisions of sections 125 to 128, cr. p.c. section 7 which is a transitional provision lays down that every application by a divorced woman under section 125 or under section 127, cr. p.c. pending before a magistrate on the com-mencement of the act shall be disposed of by such magistrate in accordance with the provisions of the muslim divorce act subject to the exercising of option under section 5. it may be seen that there is no provision in the muslim divorce act to the effect that sections 125 to 128, cr. p.c. shall stand repealed in so far as maintenance of muslim women is concerned. there is also no provision in the muslim divorce act with regard to enforcement of order of maintenance which has already become final under the cr. p.c. this clearly goes to show that the provisions with regard to enforcement of maintenance orders made under the cr. p.c.hold good even after coming into force of the muslim divorce act. this is the view taken by a learned single judge of this court in abdul rauf khan v. halemon bibi, (1989) 67 cut lt 285. the ratio of that case has recently been followed by hon'ble shri p.k. tripathy, j. in mir abdul raheman v. nurjahan alias nuri bibi, (2000) 18 ccr 158 : (2000 cri lj 1949).4. now coming to the facts of the case, admittedly the order of maintenance in favour of the petitioner was passed prior to the coming into force of the muslim divorce act. in absence of any prohibition in the muslim divorce act that any order of maintenance made under section 125, cr. p.c. is not enforceable after coming into force of the said act, the learned additional sessions judge, sambalpur clearly erred in law in vacating the order of the learned magistrate.5. in the result, the impugned order of the learned additional sessions judge, sambalpur is set aside and the order of the learned magistrate is hereby restored.6. the revision is allowed.

Judgment:
ORDER

R.K. Patra, Actg. C.J.

1. Is enforcement of the order of maintenance made Under Section 125 of the Code of Criminal Procedure, 1973 any way affected on coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986, This is the short question that arises for consideration in this revision filed by a divorced Muslim woman.

2. FACTS. The petitioner is a divorced woman who married to the opposite party according to the Muslim law. She filed Criminal Misc. Case No. 253 of 1983 Under Section 123 of the Code of Criminal Procedure, 1973 against the opposite party in the Court of S.D.J.M., Sambalpur. By order dated 24-4-1985 the learned Magistrate allowed her case on contest directing the opposite party to pay her maintenance at the rate of Rs. 160/- per month from 24-4-1985. As the amount was not paid, she filed Execution CaseNo. 137 of 1990 in the Court of S.D.J.M., Sambalpur for realisation of a sum of Rs. 19207- towards maintenance for the period from 30-7-1989 to 30-7-1990. The learned Magistrate after hearing both parties, by order dated 20.2.1992 allowed the Execution Case directing the opposite party to pay her the said amount within a period of one month. Against the said order, the opposite party filed Criminal Revision No. 31/30 of 1992 in the Court of the learned Additional Sessions Judge, Sambalpur who by order dated 6-9-1993 set aside the order of the learned Magistrate holding that after coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the order of the learned Magistrate is not enforceable. Hence this revision.

3. Chapter IX of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr. P.C.') consists of four sections and it deals with order for maintenane of wives, children and parents. Sub-section (1) of Section 125, Cr. P.C. empowers the Magistrate to grant monthly allowance to a wife, children and parents on proof of neglect or refusal. Sub-section (3) thereof authorises such Magistrate to realise the amount of maintenance. Section 126 deals with the procedure to be followed by the Magistrate in the maintenance proceeding. Under Section 127 the Magistrate may alter the allowance on proof of a change in the circumstances of the person receiving the maintenance. Section 128 empowers a Magistrate to realise the amount of maintenance at any place where the person against whom it is made may be for the time being. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Muslim Divorce Act') has come into force with effect from 19-5-1986. On careful consideration of the provisions of the Muslim Divorce Act it would appear that Sections 3 and 4 of the said Act contains a non obstante clause in general terms. Section 5 of the Muslim Divorce Act gives option to both parties to elect to be governed by the provisions of Sections 125 to 128, Cr. P.C. Section 7 which is a transitional provision lays down that every application by a divorced woman Under Section 125 or Under Section 127, Cr. P.C. pending before a Magistrate on the com-mencement of the Act shall be disposed of by such Magistrate in accordance with the provisions of the Muslim Divorce Act subject to the exercising of option Under Section 5. It may be seen that there is no provision in the Muslim Divorce Act to the effect that Sections 125 to 128, Cr. P.C. shall stand repealed in so far as maintenance of Muslim women is concerned. There is also no provision in the Muslim Divorce Act with regard to enforcement of order of maintenance which has already become final under the Cr. P.C. This clearly goes to show that the provisions with regard to enforcement of maintenance orders made under the Cr. P.C.hold good even after coming into force of the Muslim Divorce Act. This is the view taken by a learned single Judge of this Court in Abdul Rauf Khan v. Halemon Bibi, (1989) 67 Cut LT 285. The ratio of that case has recently been followed by Hon'ble Shri P.K. Tripathy, J. in Mir Abdul Raheman v. Nurjahan alias Nuri Bibi, (2000) 18 CCR 158 : (2000 Cri LJ 1949).

4. Now coming to the facts of the case, admittedly the order of maintenance in favour of the petitioner was passed prior to the coming into force of the Muslim Divorce Act. In absence of any prohibition in the Muslim Divorce Act that any order of maintenance made Under Section 125, Cr. P.C. is not enforceable after coming into force of the said Act, the learned Additional Sessions Judge, Sambalpur clearly erred in law in vacating the order of the learned Magistrate.

5. In the result, the impugned order of the learned Additional Sessions Judge, Sambalpur is set aside and the order of the learned Magistrate is hereby restored.

6. The revision is allowed.