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Judgment
A.S. Venkatachala Moorthy, J.—The matter relates to claim of maintenance by the petitioner/ applicant u/s 125 of the Cr. P.C. the petitioner-appellant has prayed for issue of a writ by way of direction to call for the order dated 30th may, 1988 passed by the Learned Additional Sessions Judge, Kolhapur in Criminal Revision Application No. 59 of 1985 and to quash and set aside the same and consequently restore the order dated 1-10-1984 passed by the learned Judicial Magistrate, First Class Ajara in Cri. Misc. Application No. 10/83.
The petitioner filed an application viz., Cri. Misc. application 10 of 1983 u/s 125 of the Cr.P.C. claiming maintenance at the rate of Rs. 300/- per month. It is the case of the petitioner that herself and the first respondent got married about 17 years prior to the filing of the application in village Ajara according to Muslim rites and customs. It is the further case of the petitioner that they lived together happily for about 10 years during which period the petitioner had 4 children out of the wed-lock. It is claimed by the petitioner that the father has got agricultural lands which are cultivated by the first respondent and that the father of the first respondent to transfer the said agricultural lands in the name of the petitioner and because of which the first respondent has been harassing the petitioner since about 1978. The petitioner would also forward a case of ill-treatment by the first respondent and failure on the part of the respondent to provide her basic needs such as food and shelter etc. It is the specific case the petitioner that she was driven out of the house and that even since then she has been residing in the house of the first respondent in a separate room where she is having her meals prepared separately in the same house. According to the petitioner the first respondent is working in Maharashtra State Road Transport Corporation and is deriving monthly salary of Rs. 700 to 800/-, apart from getting income from agricultural lands to the tune of about Rs.4000/- per year.
The first respondent resisted the said application on various grounds. The first respondent contended that the petitioner''s father had given agricultural lands to him for cultivation on tenancy basis which he has purchased u/s 32(g) under Bombay Tenancy and Agricultural Lands Act because of it the petitioner has started picking up quarrels with him. It is the counter case the first respondent that the present application has been filed by the petitioner only with an intention to harass. The first respondent also denied having ill-treated the petitioner or beaten her or driven her out of house and in fact he would contend that the petitioner is residing in house and the first respondent is paying Rs. 60/- per month maintenance as decided by the members of the community. The first respondent as would deny the case of the petitioner regard to the income that the first respondent is getting as salary as well as from the agricultural lands.
The learned Judicial Magistrate, First Class, Ajara who tried the case on facts found that the petitioner-applicant has proved that first respondent herein has refused neglected to maintain her even though he has sufficient means and that further the petitioner herein has also proved that she is unable to maintain herself and therefore she is entitled for a maintenance. As far as the issue regarding the income that the first respondent is getting, the learned magistrate held that the first respondent must be getting Rs. 5000/- per year from the agricultural lands apart from his getting a salary of Rs. 700/- to 800/- per month from the M.S.R.T.C. The learned Magistrate taking into consideration the facts of this case came to the conclusion that in the interest justice it would be just and proper to grant maintenance at the rate of Rs. 150/- per month to the petitioner - applicant since the date of filing of the application. The learned magistrate also awarded costs of Rs. 100/- of the application.
Aggrieved by the order of the learned judicial Magistrate, the first respondent herein viz., the husband filed criminal revision application No. 59 of 1985 on the file of learned Additional Sessions Judge, Kolhapur at Kolhapur. Before the learned Additional Sessions Judge it was contended by the counsel for the first respondent herein that in view of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act), the present application for maintenance is not maintainable and it was further contended that the provision of Section 125 of the Cr. P.C. are not applicable to a divorced muslim wife and the case should be decided as per the provisions of the said came to the conclusion that considering Section 3 and 7 of said Act it is clear that the application u/s 125 and 127 of the Cr. P.C. in respect of divorced muslim women is to be decided as per the said Act and not as per the Section 125 of the Cr. P.C. That apart the leaned Additional Sessions Judge also found that even assuming for the sake of arguments that the said provisions are not applicable to revision, considering the provisions of Section 7 of the said Act, it is clear that the application u/s 127 of the Cr. P.C. for executing the order passed by the Magistrate u/s 125 to be decided as per the provisions of the said Act and not as per the provisions of the Cr.P.C. On the basis of the above reasoning the learned Additional Session Judge held that in view of the provisions of the Act it is to be held that the order passed by the Judicial Magistrate cannot be held to be legal, and executable. Consequently the revisional Court allowed the revision application filed by the first respondent, husband and set aside the order of the learned Magistrate.
The present writ petition has been filed by the petitioner-applicant contending that the order of the learned Additional Sessions Judge is erroneous in as much as the learned Judge has misread and misunderstood the various provisions of the Act 25 of 86 referred above. The counsel for the petitioner would put forward the following reasonings to demonstrate that the order of the learned Additional Session Judge is illegal and contrary to law:-
The Act viz., Muslim women (protection of rights on Divorce) Act, 1986 is not retrospective in operation and the same will not apply to the present case. According to the counsel the application was disposed of by the counsel the learned Judicial Magistrate on 1-10-1984 long before the Act now in question came into force.
Section 7 of the said Act referees to "every application by divorced woman u/s 125 or u/s 127 of the Cr. P.C. 1973 pending before Magistrate on the commencement of the Act..........". Hence in as much as in the present case the application was not pending before the Magistrate on the relevant date when the Act came into force. Hence provisions of this Act are not applicable.
According to the decision reported in the case of Faridabano Shahabuddin Kadri v. Shahabuddin Muzzaroddin kadri reported in 1993 Mh LJ 252 a Division Bench of this Court has taken a view that the order of maintenance passed prior to 19-5-1986 on which date Act 25 of 86 came into force is enforceable and that further the Act is not retrospective in operation
By way of meeting the above three points raised by the counsel for the petitioner the counsel for the first respondent would make following submissions:-
Even though the application was disposed of by the Learned Judicial Magistrate on 1-10-1984, the first respondent-husband filed a criminal revision application No. 59 of 1985 on the file of the Additional Sessions Judge, Kolhapur and the same was pending before the said court on the relevant date viz., 19-5-1986. Hence it cannot be said that the Court has finally decided the matter viz., that the wife is entitled for a maintenance.
In as much as the revision application was pending on the relevant date against the original order passed by the learned Judicial Magistrate in the maintenance application, and in view of the settled position viz., that revision is continuation of proceedings, the provision of Section 7 would equally apply to the present case.
The words occurring in Section 7 of the said Act" ....... Every application....... pending before a Magistrate ...... " should not be understood literally and should be understood in the light of the decision of the division bench of this Court referred (supra).
The only point that arises for consideration in the writ petition is as to whether Section 7 of the Act, 25 of 86 would apply to the proceedings.
Section 7 of the said Act reads thus:
"Section 7:- Every application by a divorced woman u/s 125 or u/s 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 of the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of Act".
In the case reported and referred above the division bench of this Court had occasion to examine the provisions of the said Act particularly Sections 3, 5 and 7. In the reported case the division bench was dealing with two cases. The facts of which are set out in paras. 3 and 4 of the said judgment. It may be seen in the first case the maintenance was awarded by an order dated 14th August 1979 at the rate of Rs. 175/- per month for wife and Rs. 125/- per month for the son and in fact in modification of an earlier order for lower amount. As the maintenance was not paid Misc. Application No. 113 of 1986 was filed in the Court of Judicial Magistrate, first class Nashik, in which proceeding on 7th August 1986 the husband applied for stay of recovery on the ground that the Act, 25 of 1986 precluded any demand for such maintenance. As far as the second case dealt with is concerned, in that case by an order dated 14th October 1980 the court awarded maintenance at the rate of Rs. 150/- for wife and Rs. 50/- per month to the son. The wife thereafter filed an application No. 440 of 1983 for enhancement of the maintenance of her son from Rs. 50/- per month to Rs. 100/- per month which was granted on 15th November 1984. Thereafter the husband filed an application No. 633 of 1986 for an order suspending the payment of maintenance. Thus in both the cases referred to and dealt with by the division bench it may be noticed that a finality was reached lay prior to 19-5-86 and by virtue of the orders, the wife was declared to be entitled for maintenance. In both the cases the respective husbands did not take up the matter further and thus in both the above referred cases the respective applicants acquired vested rights. In that context the court observed;
"In the case of those applications, like the present one where the right to receive maintenance has already vested in the parties, in the absence of any specific provision in the present Act extinguishing that right it would be improper to hold that the right is not enforceable. It is necessary to take note of the fact that there would be a large number of cases wherein women of this category are entitled to receive maintenance under the orders passed under the relevant provisions of the Code of Criminal Procedure prior to 19th May 1986 and merely because there are no applications pending for enforcement of those orders, it would be illogical and impermissible to conclude that only those beneficiaries would continue to be entitled to their maintenance whereas in the few cases where applications for enforcing those orders are pending that the right to receive would stand extinguished."
Hence it could be seen that the division bench has clearly pointed out that only in cases where an applicant has acquired vested right prior to this Act coming into force the provisions of the Act 25 of 86 would not be applicable.
Coming to the present was case at hand I find that the original application was disposed of by the learned magistrate on 1-10-1984. The first respondent filed cri. revision application on the file of the Additional Sessions Judge, Kolhapur and the same was numbered as 59 of 1985 during the pendency of the a said application the present Act, viz., Act 25 of 1986 came into force. The revision application was disposed of by the learned Additional Session Judge on 30th May 1988. Now in the light of the relevant dates pointed out above the Court has to examine how the Provisions of Section 7 of the Act 25 of 86, particularly words "every application by a divorced woman u/s 125 and 127 of the Cr. P.C. pending before the Magistrate on the commencement of the Act .......... " to be understood. If it is to be understood literally then the answer would be the Act 25 of 86 would not apply to the facts of the present case. If is to be understood to mean that the application to determine the award of maintenance pending then it would mean the provision of the said Act would apply to the facts of the present case. The answer to this can be found in para 19 of the decision referred above viz., 1993 Mh LJ 252, in the case of Faridabano Shahabuddin Kadri v. Shahabuddin Muzzaroddin Kadri. The division bench has held:--
"It is necessary to record here that the applications referred to in Section 125 or 127 of the Cr. P.C., in Section 7, in the context in which the new Act referees to them, will necessarily have to be limited to those applications wherein the Court is being asked to determine the award of maintenance for the first time ......"The division bench has emphasised on the words "for the first time." It is necessary now at this stage to re-call the two cases referred to by the division bench wherein the applicant''s right to receive maintenance was decided long back and the same was not questioned by the opponent and it reached finality. But as far as the present case is concerned, for the first time the petitioner applicant filed the petition u/s 125 of the Cr.P.C. before the learned Magistrate. True the learned Magistrate decided that application in favour of the petitioner before the relevant date i.e. 19-5-96 but however the first respondent filed a criminal revision application and the same was pending before the learned Additional Sessions Judge at the relevant point of time. In as much as the revision application was pending at the relevant time, the revision application being continuation of the proceeding, it has to be held the that maintenance application was pending before the court for the first time. In view of that it has to be held that the provisions of Act 25 of 86 would apply to the present case and consequently the order of the learned Additional Session Judge is liable to be confirmed.
In the result the writ petition is dismissed. The rule is discharged.
Petition dismissed.