Naseemunisa Begum D/O Shaikh ... vs Shaikh Abdul Rehman S/O Shaikh ...
2001 Latest Caselaw 225 Bom

JUDGMENT

V.K. Barde, J.

1. These Applications, Writ Petitions and Revision Application are placed before the Division Bench because of the reference made by the learned Single Judge. All these matters are arising out of the dispute with respect to right of maintenance of divorced Muslim Women, with reference to the provisions of Chapter IX of the Code of Criminal Procedure, 1973; and the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "the 1986 Act")- The learned Single Judge has enumerated the points, which require, according to him, a decision by the Larger Bench; and those are as follows :

"(1) Whether sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by themselves, are enabling provisions, so as to confer some rights on a divorced woman, particularly in view of :

(a)     the preamble and the statement of objects and reasons of the Act;
 

(b)     the rights specified, protected or created newly in favour of a divorced woman :  
   

 (i)       under Section 3(1) during the period of Iddat.
 

(ii)    under sections 3(1)(b) to (d) and Section 4(2) during or after the Iddat period.
 (iii)   under Section 4(1) after the period of Iddat?  
 

(2) Is anything contained in sections 3 and 4 of the Act of 1986 inconsistent with the provisions contained in sections 125 to 128 of the Code of Criminal Procedure? If so, is it so much inconsistent as to lead to a conclusion that sections 125 to 128 of the Code of Criminal Procedure stand repealed-by implication by the non-obstante clauses used in sections 3(1) and 4(1), particularly if the provisions contained in sections 3 and 4 of the Act of 1986 are considered as enabling provisions?

(3) Whether the contents of the substantive right to maintenance as created by Section 125 of the Code of Criminal Procedure and the contents of the rights specified, protected or created by sections 3 and 4 of the Act of 1986, can be said to have been controlled, curtailed or abridged by the procedural option given in Section 5 or by the transitional provisions contained in Section 7 of the Act of 1986?

(4) If the provisions contained in sections 3 and 4 of the Act of 1986 are enabling provisions, whether the summary remedy provided in sections 3{ii) and (iii) and (iv) against the husband under Section 4(1) and 4(2) against other relatives and the Wakf Board, constitutes only a remedy alternative to and/or supplement to the summary remedy provided for under sections 125 to 128 of the Code of Criminal Procedure, in view of:

(a)     option given under Section 127 of the Code to be governed by the provisions contained in the sections 125 to 128 of the Code of Criminal Procedure, or, by the Act of 1986?
 

(b)    keeping alive the provisions of Section 128 of the Code of Criminal Procedure regarding jurisdiction to enforce the orders in the Courts of Magistrates indicated in Section 128 of the Code of Criminal Procedure? 
 

(5) Do the aforesaid provisions regarding summary remedies provided by the Act of 1986 govern the interpretation of Section 3(1) and 4 of the Act of 1986, which specify, declare and confer substantive rights in favour of divorced women?
 

(6) To what extent, if any, the rights of a divorced woman of each of the seven categories listed in the earlier part of this judgment:
   

(a)     to proceed under Sections 125 to 127 of the Code of Criminal Procedure for maintenance before a Court;
 

(b)     to execute the orders passed by the Court under the aforesaid provisions of the Code of Criminal Procedure;  (stand) repealed, curtailed, abridged or substituted by virtue of the provisions of the Act of 1986, especially in view of Section 6(c) and (e) of the General Clauses Act, 1987? 
 

(7) Whether the Court of the Magistrate to whom an application is made by a Muslim married woman under sections 125 to 127 of the Code of Criminal Procedure, 1973, becomes functus officio as soon as she is divorced pending proceeding, so as to attract application of the Act of 1986, in view of the forum indicated by the Act of 1986?"

2. Shri D.B. Yevatekar, the learned counsel for the petitioner in Criminal Writ Petition No. 248 of 1989, had advanced the main arguments on behalf of the divorced Muslim Women; while Shri M.V. Deshpande, the learned Counsel for the petitioner in Criminal Writ Petition No. 61 of 1986; and Shri Gulam Mustafa, the learned counsel for the petitioner in Criminal Revision Application No. 45 of 1989, have advanced main arguments on behalf of prior husbands of such divorced Muslim Women.

3. In Criminal Writ Petition No. 248 of 1989, the petitioner has raised challenge to the Constitutional validity of the 1986 Act. However, Shri Yevatekar, the learned Counsel for the petitioner, has made a statement that as the matter of the petitioner is fully covered by the decision of the Full Bench of this Court in the matter of Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh and others, reported in 2000(3) Mh.LJ. 555, he is not pressing the challenge to the Constitutional validity of the 1986 Act; and, therefore, that aspect of the case is not being considered in this Judgment.

4. The learned counsel, Shri Deshpande and Shri Gulam Mustafa, have placed more reliance on the contention that a divorced Muslim woman is-not entitled to maintenance as per the Muslim Personal Law after the period of Iddat.

In support of this contention, the learned counsel, Shri Gulam Mustafa has relied upon Chapter XV, Section III of the Hedaya (Commentary on the Islamic Laws, translated by Charles Hamilton, Second Edition, Reprint 1994. Page 145). The relevant caption reads as follows : , "A divorced wife is entitled to maintenance during her Edit.-- Where a man divorces his wife, her subsistence and lodging are incumbent upon him during the term of her Edit, whether the divorce be of the reversible or irreversible kind."

5; In fact, not much discussion is required on this point, because the Supreme Court has already considered this aspect of the case in the matter of Mohd. Ahmed Khan v. Shah Bano Begum and others, ; and has held that even, as per the Personal Law, a divorced Muslim Woman is entitled to maintenance beyond the period of Iddat.

6. Furthermore, whether a divorced Muslim woman is entitled to maintenance or not, after the passing of 1986 Act, is also fully considered in the Judgment of the Full Bench of this Court in Karim Abdul's case (cited supra) and it is held therein that she is entitled to maintenance during the period of Iddat; however, the husband will have to make a fair and reasonable provision for the period beyond Iddat and such "provision" is different from 'maintenance', which is to be given during the period of Iddat.

7. In view of above, it is not possible to accept the arguments advanced by the learned Counsel, Shri Deshpande and Shri Gulam Mustafa.

8. However, the learned Counsel, Shri Deshpande, has contended that the issue which was referred to the Full Bench of this Court in Karim Abdul's case (cited supra), was a limited issue, as seen from the Judgment of the Full Bench. The issue was, "Is the Family Court empowered to entertain an application under Section 125 of the Code, filed by the divorced woman, against the former husband, and for the post-Iddat period, for maintenance". So only this much point ought to have been decided by the Full Bench. The other matters, which are described by the Full Bench, were not covered is that issue and, therefore, the decision given by the Full Bench is riot binding and this Bench can reconsider the aspect in the light of the provisions of Muslim Personal Law.

9. We do not agree with this argument of the learned Counsel, first, because the decision given by the Full Bench is always binding on the smaller Benches. It will not be proper for a smaller Bench to go into the question whether the Full Bench was called upon to decide those issues. In this matter, the decision given by the Full Bench also cannot be called as obiter dicta, because all relevant questions had to be considered before giving a decision on the point referred to the Full Bench. On going through the entire judgment of the Full Bench, it will be clear that the matters which are decided by the Full Bench were all relevant for the decision of the point, which was referred to the Full Bench.

10. In this respect, we would like to rely upon the decision of the Apex Court in the matter of Pabitra Mohan Dash etc. v. State of Orissq and Ors. . Their Lordships, while considering the similar question, have observed in Paragraph 7 :

"........................ That apart, though point of reference may be of a limited nature but in answering the same if the Court feels that it would be in the interest of justice to constitute a larger Bench and examine the correctness of any earlier conclusion which might have been made on an erroneous interpretation of any provision, then there would be no fetter for adopting that procedure. In this view of the matter we see no infirmity with the approach of the Special Bench in re-examining the issues afresh in the light of the relevant provisions of the Act, Rules and Regulations. ........"

11. The principle thus laid down is that the larger Bench has to consider not only the point which is referred to the larger Bench in its limited scope, but should also consider all other relevant matters for setting down the correct position in law. In the matter before the Full Bench, the Full Bench thought it proper to consider various aspects of this point; and after considering all those points, the Full Bench has given the decision and it is binding on this Bench also.

12. The learned Counsel, Shri Deshpande and Shri Gulam Mustafa, have contended that the 1986 Act is a declaratory statute and it has retrospective effect. So, whatever orders, which are passed under Section 125 of the Code of Criminal Procedure prior to the commencement of the 1986 Act would not be enforceable after the commencement of the 1986 Act. The divorced Muslim Woman has the only right against her former husband as described under Section 3 of the 1986 Act, She could file application under Section 3 . The provisions of Chapter IX, Code of Criminal Procedure, stand repealed because of the provisions of the 1986 Act.

13. In support of this contention, the learned Counsel Shri Gulam Mustafa has relied upon the ruling of the Division Bench of this Court in the matter of Mahomed Abdul Aziz Hidayat v. Khairuddin Abdul Gam, . He has pointed out that a divorced Muslim Woman under the Personal Law has a right of maintenance against the persons, who are going to be her heirs to claim share in her property and only this personal right, which is already there under the Personal Law, which is recognised under the 1986 Act. In paragraph 2 of the Bombay ruling (cited supra), Their Lordships have observed :

"The principles with regard to maintenance under Mahomedan law are fairly well settled, and the main principle is, as is to be found in Mulla's Mahomedan Law, p. 286 and Mulla relies upon the statement of law in Baillie's Digest of Mahomedan Law at p. 467, that a person is liable to maintain another when that person could be the heir of the person whom he is called upon to maintain.........................."

All the persons named in Section 4 of the 1986 Act are those, who are the heirs of a divorced Muslim woman and, therefore, they are liable to pay the maintenance to a divorced Muslim woman. So, from this point of view, the 1986 Act is only declaratory and it can be of retrospective effect to hold that any orders passed under Section 125 of the Code of Criminal Procedure would be invalidated by passing of the 1986 Act. Those cannot be enforced after the commencement of the 1986 Act.

14. In the Bombay ruling (cited supra), this Court was considering the question, whether father-in-law was liable to pay maintenance to a daughter-in-law and to decide that question, the above quoted observations were made in the said judgment. It is true that Section 4 of the 1986 Act makes it clear who are the persons liable to pay maintenance to a divorced Muslim woman as per the Personal Law, but merely because that is the the provision under the 1986 Act, it cannot be said that the 1986 Act has retrospective effect. To find out whether the Act has a retrospective effect, the entire Act and the purpose for which the Act is passed are to be taken into consideration.

15. The Supreme Court, in the matter of K.S. Paripoornan v. State of Kerala and Ors., , has observed as under:--

" A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the Legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by

subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See Halsbury's Laws of England, 4th Edn. Vol. 44, pages 921, 922, 925 and 926)."

16. If it had been the intention of the Legislature to provide that all orders of maintenance passed under Section 125, Code of Criminal Procedure, in favour of a divorced Muslim Woman should not remain enforceable after the commencement of the 1986 Act, then, there would have been some such clear provision made in the 1986 Act, but there is no such clear provision. It has also to be noted that Section 5 of the 1986 Act gives an option to the parties either to get the matter decided as per the provisions of the 1986 Act, or as per the provisions of Chapter IX of the Code of Criminal Procedure. This clearly means that the Legislature never intended to repeal entire provisions of Chapter IX, Code of Criminal Procedure, as applicable to a divorced Muslim woman. Furthermore, Section 7 of the 1986 Act also makes it clear that any proceedings pending before the Court of J.M.F.C. under Section 125 or Section 127 of the Code of Criminal Procedure should be conducted as per the provisions of the 1986 Act, subject to the provisions of Section 5 thereof. That means, an option is given to the parties even in the pending proceedings to have their matter decided as per the provisions of the Code of Criminal Procedure. This 1986 Act also does not say anything about the pending proceedings by way of revision before the Court of Sessions arising out of the matter decided under Chapter IX of the Code of Criminal Procedure. That means, such revision and other proceedings pending in the Court of Sessions or in the High Court will have to be decided as per the provisions of the Code of Criminal Procedure and not as per the provisions of the 1986 Act.

17. The 1986 Act makes a provision that a divorced Muslim woman can claim maintenance from her husband for her child for a period of two years age of the child, under Section 3 of the 1986 Act; but the rights of such child given under Chapter IX of the Code of Criminal Procedure are not taken away by the 1986 Act. That clearly means that this 1986 Act is making provisions to protect the rights of the divorced Muslim woman in certain circumstance; that means the circumstance when she is not able to maintain herself beyond the period of Iddat and when there is no fair and reasonable provision made by her husband for such period beyond Iddat. In such circumstances, it cannot be said that the 1986 Act being declaratory, it has retrospective application and all orders or rights, which are accrued under the provisions of Chapter IX of the Code of Criminal Procedure to a divorced Muslim woman have come to an end because of the 1986 Act.

18. This aspect of the case was also considered by the Division Bench of this Court in the matter of Faridabano Shahabuddin Kadri and another v. Shahabuddin Muzzaroddin Kadri and another, reported in 1993 Mh.U 252. The Division Bench has observed in paragraphs 17,18 and 19 as follows:--

"17. In our considered view, it is settled law that in the absence of specific provisions, an Act cannot be given retrospective application, thereby affecting or extinguishing rights that have vested. Nowhere in the new Act is there even the faintest glitter of any intention on the part of the Legislature to affect or extinguish existing or vested rights or for that matter to apply the Act retrospectively. Such a'conclusion is not permissible by implication and it would, therefore, necessarily follow that the applicability is not retrospective but prospective.

"18. Section 7 of the Act will, therefore, have to be construed strictly in the manner in which it is defined. This Section appears under the subheading "Transitional Provisions". It is, therefore, explicit that it is to take into account the transition or the change from the previous situation to that which now prevails. If the Act were to be effective retrospectively, such transitional provisions would be redundant. It only supports the view that it is only in (sic) (an?) Amending Act and that Section 7 prescribes the manner in which the law is to apply after the promulgation of this statute. All that it provides for is that applications pending before a Magistrate under Section 125 or Section 127 of the Code of Criminal Procedure shall be disposed of in accordance with the provisions of this Act in those of the cases where the option under Section 5 to be governed by the old provisions is not exercised. It would also mean that in all such cases where an application for maintenance, in the first instance, or variation of that order, therefore, is pending, that the change in the law brought about by this Act shall be given effect to for the obvious reason that the law in operation on the date of the decision of the application, namely, the new law and not the one in operation on the date of the filing of the application would apply. 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 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. Furthermore, divorced wives in whose cases defaults are made and, who, therefore, had to approach the Courts for executing the orders cannot be placed in a worse position than those who are receiving maintenance under orders wherein no default is committed. "19. We are reinforced in this view by the fact that the Legislature has bodily incorporated in Sub-section (4) of Section 3 the very provisions of Section 125(3) of the Code of Criminal procedure which prescribe the method of enforcement for orders of maintenance. It is necessary to record here that the applications referred to in Section 125 or Section 127 of the Code of Criminal Procedure, in Section 7 in the context in which the new Act refers 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 or where the application is for alteration or enhancement of maintenance. In cases where the application is not for determination of the quantum of maintenance, the provisions of Section 3 Sub-clause (4) would be applicable. This is the only permissible view because even though the new Act has superseded the provisions of Sections 125 and 127 of the Code of Criminal Procedure, it has still retained as far as the enforcement of orders is concerned, the provisions of Section 125(3) of the Code of Criminal Procedure, which are bodily reproduced in Section 3(4) of the new Act. To that extent the orders of maintenance passed prior to the coming into operation of the new Act are concerned, they shall, therefore, be enforceable in the manner provided by Section 3(4) of the new Act. The decision in Mahboob Khan's case stands overruled."

We do not find any reason to differ with the decision given by the Division Bench, quoted above.

19. The rights, which are vested in divorced Muslim women by any order passed under Section 125 of the Code of Criminal Procedure granting her maintenance beyond the period of Iddat, cannot be divested merely because of enforcement of the 1986 Act. Hence, the arguments advanced by the learned Counsel, Shri Deshpande and Shri Gulam Mustafa, cannot be accepted.

20. In view of all this,

(1) Point No. 1 has to be answered to the effect that no new right is created in favour of a divorced Muslim woman, but whatever rights she had under the Personal Law, they are restated in Sections 3 and 4 of the 1986 Act. She is not entitled to "maintenance" after the period of Iddat, as pointed out in the pull Bench decision (cited supra); however, the husband is liable to make a "fair and reasonable provision" even for the period after Iddat.

(2) So far as Point No. 2 is concerned, it is held that the provisions of Sections 125 to 128 of the Code of Criminal Procedure are not inconsistent with the provisions of Sections 3 and 4 of the 1986 Act. The divorced Muslim woman can make an application for the maintenance for the period of Iddat and for fair and reasonable provision for period beyond Iddat as per the provisions of Section 3 of the 1986 Act and if the prior husband agrees, then such proceedings can be taken under Section 125 of the Code of Criminal Procedure.

So far as the provisions of Section 4 of the 1986 Act is concerned, the right is given to the divorced Muslim woman to proceed against her heirs as per the provisions of Personal Law and that contingency may arise if there is no fair and reasonable provision made for her by the prior husband for period beyond Iddat.

(3) So far as point No. 3 is concerned, this point is fully answered by the decision of the Full Bench, referred supra. Section 5 as well as Section 7 of the 1986 Act give an option to the parties either to go under Section 125 of the Code of Criminal Procedure or under Section 3 of the 1986 Act. Sofar as Section 4 of the 1986 Act is concerned, the provisions is made for claiming maintenance against her heirs and Section 125 of the Code of Criminal Procedure does not make any such provision for claiming maintenance against the heirs of the divorced Muslim woman; and, therefore, the proceedings under Section 4 of the 1986 Act are neither covered under Section 125 of the Code of Criminal Procedure, nor under Section 5 or Section 7 of the 1986 Act.

The provision under Section 4 of the 1986 Act is quite independent of the provisions of Section 125 of the Code of Criminal Procedure. This provision only recognises the right of a divorced Muslim woman as per the Personal Law.

(4) So far as Point No. 4 is concerned, it is made clear above that so far as right of maintenance of a divorced Muslim woman against her former husband is concerned, it is limited to the period of Iddat as laid down by the Full Bench in the decision cited supra; and to that extent, it is an alternative remedy to the remedy given under Section 125 of the Code of Criminal Procedure, but subject to the consent from the former husband as provided under Section 5 of the 1986 Act.

As the provisions under Section 4 of the 1986 Act giving rights to a divorced Muslim woman to claim maintenance from her relatives or from the Wakf Board are not at all covered under the provisions of Chapter IX of the Code of Criminal Procedure, these are additional rights recognised in favour of a divocred Muslim woman on the basis, of Personal Law. This point is already covered by the above quoted ruling of Division Bench of this Court, . So far as an application under Section 128 of the Code of Criminal Procedure is concerned, it is not covered under Section 7 of the 1986 Act. Any application for execution of an order for maintenance passed in favour of a divorced Muslim woman prior to the commencement of the 1986 Act would be maintainable and such order executable against her former husband, notwithstanding the provisions of the 1986 Act, as held by the Full Bench in the decision, cited supra.

(5) In view of the answers given to Points Nos. (1) to (4), Point No. 5 does not survive.

(6) So far as Point No. 6 is concerned, the decision given by the Full Bench cited supra, has covered all those contingencies, which are expressed in this Point by the learned Single Judge, and that decision has settled the issue.

So far as the first category is concerned, if rights are finally crystallised before coming into force of the 1986 Act as per the decision under Sections 125 to 127 of the Code of Criminal Procedure, then those continue to remain in force even after the commencement of the 1986 Act.

With respect to second and third categories, if any revision is filed either by the divorced Muslim woman or by her former husband, that will be decided as per the provisions of Chapter IX of the Code of Criminal Procedure, because Sub-section (7) is not made applicable to the revisional proceedings.

With respect to the fourth category, if the proceedings under Section 125 to 127 of the Code of Criminal Procedure, are pending before the Magistrate and the woman is divorced either before the commencement of the 1986 Act, or, after the commencement of 1986 Act, the matter will be covered by Section 7 read with Section 5 of the 1986 Act. The fifth category is covered in Categories Nos. 1, 2, 3 and 4, and, therefore, stands answered accordingly.

Similarly, the sixth category is also covered by the answer given in respect of third and fourth categories, because revision petition will have . to be considered as per the provisions of the Code of Criminal Procedure, even if during the pendency of the revisional proceedings, the 1986 Act has come into force.

With respect to seventh category, so far as Muslim woman considered there is only a neglected wife, she can claim maintenance as per the provisions of Section 125 of the Code of Criminal Procedure; but, if she happens to be divorced during the pendency of such proceedings, then her right of maintenance will be limited till the period of Iddat expires; and for the post-Iddat period, she will have to proceed as per the 1986 Act.

(7) Point No. 7 stands answered in view of the above answers.

21. Hence, the points referred to this Bench are answered as above. The relevant Applications, Writ Petitions and Revision Petition now be placed before the appropriate Bench.