Kaka vs Hassan Bano and Another

S.S. Grewal, J.—This revision petition has been filed against the impugned order dated 2-1-1987 whereby the sentence of the present petitioner u/s 125(3) of the Code of Criminal Procedure (hereinafter referred to as the Code) was extended for non-payment of arrears of maintenance allowance at the rate of Rs. 200/- per month to the respondent wife in the present petition and at the rate of Rs. 75/- per month concerning their minor son from 19-5-1985 to 18-5-1986 along with costs of Rs. 200/-. In this petition reference has also been made to order dated 30th of January, 1987, whereby, the petitioner husband has paid Rs. 1000/-concerning payment of maintenance allowance to his wife, and, his minor son.

In brief, facts relevant for the disposal of this petition are that vide order dated 28-2-1985, Judicial Magistrate 1st Class, Malerkotla, awarded maintenance u/s 125 of the Code at the rate of Rs. 200/-per month to the respondent-wife and Rs. 75/- per month to their minor son with effect from 19th of May, 1983 i.e., the date of the application. The petitioner-husband however, failed to pay the maintenance and the proceedings for recovery of maintenance from 19-5-1985 to 18-5-86, were filed on behalf of the respondent-wife and the minor son of the parties, on 5tb of April, 1986.

In reply, to that petition the stand taken by the husband was that he bad already divorced his wife in the presence of his brother Nikka earlier as well as on 2-1-1987, when, he made a statement in the Court to that effect. It was also alleged on behalf of husband that objection was also raised that since the parties are Muslim and as such by virtue of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ''the Act''), the respondents were not entitled to any maintenance and the learned trial Magistrate could not extend the sentence of the petitioner-husband u/s 125(3) of the Code vide order dated 2-1-1987. On the asking of the trial Court the petitioner paid Rs. l,000/-to the respondents on 30-1-1987.

The learned counsel for the parties were heard.

On behalf of the petitioner-husband it was contended that respondent No. 1 Hassan Bano had already been divorced by the petitioner and as such after coming into force of the Act, the respondent No. 1 had no right to get any maintenance from the petitioner u/s 125 of the Code. It was submitted that no coercive method could be adopted by the trial Court u/s 125(3) of the Code for recovery of arrears of maintenance due from the petitioner

Perusal of the aforesaid Act does not indicate that there is any specific provision concerning retrospective operation of the said Act. However, at this stage, it is not necessary to go into this question, inasmuch, as both the parties are at variance as to whether respondent No. 1 had actually been legally divorced by the petitioner or not. This aspect of the case was not decided by the learned trial Magistrate in the impugned orders passed, nor, there is any material on record which would indicate that the parties had made any admission with regard to their dispute, on this important aspect of the case. In these circumstances, the learned trial Court was not at all, justified in extending the sentence awarded to the petitioner-husband with regard to recovery of arrears of maintenance which fell due after the coming into force of the said Act on 19th of May, 1986. Thus, the order of the learned trial Court in extending sentence of the petitioner-husband u/s 125(3) of the Code in respect of arrears of maintenance which became due after coming into force of the Act, cannot be legally sustained at present, and, the impugned order passed by the learned trial Court is modified to that extent. The petitioner-husband is again directed to pay the arrears of maintenance, in four equal monthly instalments, to the respondents, already due up to 18th of May, 1986, less the amount which had already been paid by the petitioner to the respondents. The monthly instalment shall be paid, or, deposited in the trial Court on or before 10th of the succeeding month. In case of default of payment of any monthly instalment, it would be open to the trial Court to take appropriate legal action for recovery of the remaining amount of arrears of maintenance due to the petitioner up to 18-5-1986. It is further clarified that after the learned trial Court had decided the main question whether the divorce between the present petitioner and Hassan Bano respondent had taken place or not, it would be open for the parties to seek appropriate legal remedies available to them. This petition is allowed to the extent indicated above. Copy of this order be sent forthwith to the trial Court. Parties through their counsel are directed to appear before the trial Court on 21-9-1990 Copy of this order shall be sent to the trial Court for compliance, along with the summoned record forthwith.