- Bookmark
- Share
- CaseIQ
Md. Yunus v. Bibi Phenkani Alias Tasrun Nisa And Another Opp. Party.
Factual and Procedural Background
The petitioner, husband of the opposite party (wife), challenged an order dated 2.4.1983 in Misc. Case No. 40 of 1979 filed under sections 125(4)(5) and 127(2)(3)(b) of the Code of Criminal Procedure (CrPC). The wife had filed a petition under section 125 of the CrPC claiming maintenance of Rs. 400 per month for herself and her son Mumtaz, alleging that the petitioner had contracted a second marriage and neglected her. The petitioner denied paternity of Mumtaz, claimed to have divorced the wife, and asserted he had paid her dower debt. The Magistrate initially ordered maintenance of Rs. 200 per month to the wife but denied maintenance to Mumtaz. The petitioner subsequently filed a suit for declaration of divorce and illegality of the maintenance order, which was decreed by the Civil Court, declaring the marriage dissolved in 1959. The petitioner then applied to cancel the maintenance order based on the Civil Court's decision, but the Magistrate refused cancellation due to a pending appeal by the wife.
Legal Issues Presented
- Whether the Muslim Woman (Protection of Rights on Divorce) Act, 1986, alters or supersedes the entitlement of a divorced Muslim woman to maintenance under section 125 of the CrPC.
- Whether the maintenance order passed under section 125 of the CrPC can be cancelled or varied in light of the new Act and the Civil Court's declaration of divorce.
- The extent and duration of maintenance entitlement of a divorced Muslim woman under the 1986 Act compared to the CrPC provisions.
- The applicability and effect of non-obstante clauses in the 1986 Act overriding prior provisions of the CrPC relating to maintenance.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner contended that the Muslim Woman (Protection of Rights on Divorce) Act, 1986, changed the legal position, limiting maintenance entitlement to the Iddat period only, thereby negating the wife’s claim for maintenance beyond that period.
- He argued that since the Civil Court had declared the marriage dissolved in 1959, the maintenance order under section 125 of the CrPC was illegal and should be cancelled.
- The petitioner claimed that the wife was not entitled to maintenance after the Iddat period under the new Act, which does not contain a saving clause for prior maintenance orders.
Opposite Party’s Arguments
- The wife denied the fact of divorce and claimed entitlement to maintenance as per the earlier orders.
- She filed an appeal against the Civil Court’s decree dissolving the marriage, which was pending at the time of the Magistrate’s refusal to cancel the maintenance order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lallu Prasad v. State of Bihar (A.I.R 1976, Patna, 137) | Purpose of non-obstante clause to override other provisions. | Used to establish that the non-obstante clause in the 1986 Act overrides conflicting provisions in the CrPC. |
| Sarwan Singh v. Kasturi Lal ((1977) 1 SCC 750 : A.I.R 1977 Supreme Court 265) | When two laws with non-obstante clauses conflict, the later law prevails based on object and purpose. | Supported the principle that the 1986 Act, as a later enactment with a non-obstante clause, prevails over earlier CrPC provisions. |
| R.P Jain v. State of Bihar (1977 Cr. L.J, 1758) | If a repealing Act does not save a right or remedy, both are lost. | Applied to show that the 1986 Act repealed the right to maintenance under CrPC without saving it, resulting in loss of remedy. |
| United Provinces v. Mt. Atiqa Begum (A.I.R 1941 F.C 16) | When two Acts are repugnant, the later Act impliedly repeals or amends the earlier. | Used to conclude that the 1986 Act impliedly repealed conflicting CrPC provisions relating to maintenance of divorced Muslim women. |
| Kamakhya Narain Singh v. State of Bihar (A.I.R 1981 Patna, 236) | Later Act with same purpose supersedes earlier Act in the same field. | Supported the principle of implied repeal of earlier legislation by later enactments in overlapping fields. |
Court's Reasoning and Analysis
The Court undertook a detailed examination of the Muslim Woman (Protection of Rights on Divorce) Act, 1986, focusing on its substantive and procedural provisions, particularly section 3 which limits maintenance entitlement to the Iddat period and maintenance for minor children for two years. The Court contrasted these provisions with section 125 of the CrPC, which allowed maintenance until remarriage and had a monetary cap. It noted the absence of any saving clause in the 1986 Act that would preserve prior rights or orders under the CrPC. The Court reasoned that the non-obstante clause in the 1986 Act impliedly repealed the conflicting provisions of the CrPC, thereby curtailing the divorced Muslim woman’s right to maintenance beyond the Iddat period. The Court relied on established precedents interpreting non-obstante clauses and implied repeal, concluding that the later Act must prevail over earlier conflicting law. It further held that maintenance orders passed under section 125 of the CrPC in favor of divorced Muslim women, whether final or pending, cannot be enforced after the 1986 Act’s commencement without frustrating the legislative intent. Applying these principles to the facts, the Court found the wife was no longer entitled to maintenance under the new legal regime.
Holding and Implications
The Court allowed the petitioner’s application and rejected the opposite party’s claim for maintenance.
The decision directly affects the parties by terminating the wife’s entitlement to maintenance under section 125 of the CrPC in light of the Muslim Woman (Protection of Rights on Divorce) Act, 1986. No maintenance is payable beyond the Iddat period as defined by the Act. The Court did not establish a new precedent beyond applying the existing legal framework of implied repeal and non-obstante clauses. The ruling emphasizes that the 1986 Act supersedes prior maintenance rights of divorced Muslim women under the CrPC, thereby limiting maintenance claims strictly within the Act’s provisions.
Anand Prasad Sinha, J.:— The husband is the petitioner. This application is directed against the impugned order dated 2.4.1983 in Misc. Case No. 40 of 1979 filed by the petitioner Page: 66under section 125(4)(5) and 127(2)(3)(b) of the Code of Criminal Procedure (hereinafter to be referred to as the Code).
2. The opposite party who happened to be the wife of the petitioner had filed a petition under section 125 of the Code in the court of the learned Sub-divisional Judicial Magistrate, Sikrahana at Motihari claiming maintenance of Rs. 400/- yer month for herself and his son Mumtaz (Opp. Party No. 2). She has alleged that she is the legally wedded wife of the petitioner and Mumtax was the son. The wife had claimed that the petitioner had contracted another marriage and was living with the second wife. The Opposite Party was being neglected and she was unable to maintain her self. The petitioner had filed a show cause stating therein that he had already divorced the opposite party-wife and she was a woman of loose character. Further the petitioner has claimed that he had paid downer debt to the opposite party. The petitioner has disclaimed Mumtaz to be his son. He has also stated that after divorce he had got a second marriage.
3. It has been also alleged that the opposite party wife was having business and was earning about Rs. 500/- to Rs. 600/- per month. It appears that the claim of the parties had been adjudicated and by an order date a 26-7-1980 it had been held that the said divorce became effective atleast from the date when the petitioner had filed his show cause. The learned Magistrate had directed to pay Rs. 200/- per month as maintenance. The learned court below has held that Mumtaz was not entitled for any maintenance. Thereafter the petitioner had filed title suit No. 104 of 1980 in the court of the Munsif, Sikrahana at Motihari for a declaration that the marriage in between the petitioner and the opposite party was dissolved in January, 1959 and as such the order of maintenance is illegal and against the law.
4. The wife opposite party had appeared and she had also filed her written statement. She had not accepted the fact of divorce, however, the learned Munsif by his judgment and order dated 31.1.1983 had decreed the suit declaring that the marriage between the petitioner and the opposite party had been dissolved in the year 1959. Thereafter, the petitioner had filed an application under section 125(4)(5) and 157(2)(3)(b) of the Code on 3.3.1983 in the court of the learned Magistrate to cancel the order of maintenance dated 26.7.1980 in view of the decision of the Civil Court. The wife had filed rejoinder that she had filed already an appeal against the order of the Munsif and, as a matter of fact, at the time of disposal of the petition of the petitioner the appeal was pending.
5. The learned Magistrate on consideration of the facts and circumstances has opined that since the appeal was pending, there was no occasion to cancel the order for payment of maintenance.
6. Learned counsel Mr. wasi Akhtar appearing on behalf of the petitioner has mainly contended that in view of the new enactment being the Muslim woman (Protection of Rights on Divorce) Act, 1986 (hereinafter to be referred to as the Act) the entire situation has now changed making the opposite party not entitled for maintenance, as claimed.
7. Before I enter into the application of law on the facts of this case, I would like to say a few words with regard to the Act. The Act which is Act No. 23 of 1986 has been enacted to protect the rights of Muslim woman who have been divorced by or have obtained Page: 67divorce from their husbands. This Act has come into force on the 19th May, 1986 after receiving the assent of the President of India published in the Gazette of India, Extraordinary Part II. The scheme of the Act is complete in seven sections, the relevant is section 2 which defines ‘divorced woman’ and ‘iddat period’ which are essential for the disposal of this application. Section 3 of the Act contains non-obstante clause and has got four sub-sections. Sub-Section (1) is substantive and that prescribes the entitlement of a divorced woman, section 3(1)(a) has made a divorced woman entitled to get maintenance from her former husband for the Iddat period only. Section 3(1)(b) prescribes the right of the divorced woman to claim maintenance for her minor children for a period of two years from the respective dates of birth of such children. Section 3(1)(c) of the Act prescribes that a divorced woman shall be entitled to get an equal amount equal to the sum of Mohar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law. Section 3(1)(d) entitles a divorced woman to get all the properties given to her before or at the time of marriage or after marriage by her relations or friends or the husband or any relative of the husband or his friends. Section 3(2) is procedural in nature. It prescribes the procedure for filing application by the divorced woman or any one duly authorised by her to a Judicial Magistrate of the 1st Class exercising a jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced woman resides for an order for payment of such provision and maintenance, Mahar or dower or the delivery of the properties as the case may be. Sub-section (3) of section 3 of the Act is also procedural, it provides the nature of the order to be passed by the Magistrate on proof of certain conditions directing the former husband to pay the maintenance, Mahar or dower or delivery of the properties as the case may be. Such order is to be passed within one month from the date of the filing of the application but the period may be extended for reasons to be recorded if the Magistrate finds it not practicable to dispose of the application within one month while passing the order, the Magistrate is to have regards to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband. Section 3(4) of the Act provides the procedure for the execution of the order passed under sub-section (3) if the order is not complied with by the former husband without sufficient cause. This provision is similar to the provision provided under section 125(3) of the Code.
8. Section 4 of the Act is both substantive and procedural. It entitles a divorced woman who has not re-married and is not able to maintain herself after the Iddat period, to claim maintenance from her certain relatives who would be entitled to inherit her properties on her death according to Muslim Law. The relatives are in the order of preference-children, the parents and other relatives. The Magistrate will have regard to the needs of the divorced woman, the standard of life enjoyed by her during marriage and the means of such relatives. In case of relatives having no means or not able to provide maintenance to the divorced woman, a direction may be given under section 4(2) of the Act to the State wakf Board established under section 9 of the wakf Act, 1954, fuctioning in the area in which the woman resides to pay such maintenance as determined by the Magistrate under sub-section (1) or as the case may be to pay the shares of such of Page: 68the relatives who are unable to pay at such period as may be specified in the order.
9. Section 5 of the Act prescribes that the parties may opt to be governed by the provision of section 125 to 128 of the Code and also provides the procedure to be followed for such option i.e to title such affidavit or declaration in this regard in the court hearing the application. Section 6 of the Act powers the Central Government to frame rules for carrying out the purpose of the Act by notification in the official Gazette and that has already been framed. Section 7 of the Act prescribes the mode of disposal of application filed under section 125 or 127 of the Code pending before a Magistrate to be disposed of in accordance with the provisions of the Act subject to the provisions of section 5 of the Act.
10. It would be relevant to make a comparative study of the provisions of this Act with the provisions of Chapter IX containing section 125 to 128 of the Code.
11. Under section 125 of the Code, wife including a divorced woman who had not remarried, parents, legitimate or illegitimate minor child, or major child by reason of any physical of mental abnormality or injury unable to maintain itself of all religion are entitled whereas in this Act only Muslim divorced woman, who has not re-married and child upto the age of two years, are entitled to get maintenance. Under the provisions of section 125 of the Code, a divorced Muslim woman could get maintenance until she was re-married; whereas under this Act such woman can get maintenance only upto Iddat period. Under section 125 of the Code divorced Muslim woman could get maintenance upto Rs. 500/- per month only but no limit is prescribed under the Act. Under section 125 of the Code application could have been filed for the grant of maintenance only but under the provision of the Act application can be filed for payment of an amount equal to the sum of Mahar or dower agreed to be paid to her at the time of her marriage or at any time, thereafter, according to Muslim Law and also for the properties given to her at the time of marriage or after her marriage by her relatives or friends or the husband or any relations of the husband or his friends.
12. Under the provisions of the Code, an application under section 125 of the Code could have been filed before a Magistrate of any District where he is or where he or his wife resides or where he last resided with his wife or as the of case may be with the mother of the illegitimate child but under the provisions of this Act an application can be filed before a Magistrate of the area where the divorced woman resides i.e the residence of the divorced woman will be a selective factor for the purpose of jurisdiction for filing an application by divorced woman. Under section 125 of the Code, a wife living in adultery was not entitled to get maintenance but this is no ground to refuse maintenance to her. Under section 125 of the liability to maintain a divorced wife lies on the husband only but under the provisions of the Act the husband is liable to maintain his wife who has been divorced only upto Iddat poriad and thereafter certain relatives of the divorced woman and on their failure the State wakf Board is liable.
13. An order passed under section 125 of the Code in the changed circumstance can be varied or cancelled under section 127 of the Code by the Magistrate but there is no provision under this Act for the cancellation of the order passed. The order passed under section 125 of the Code is executable but under the provisions Page: 69of this Act the order passed under section 3(3) of the Act only are executable. There is no provision empowering a Magistrate in case of non-compliance of the order passed under section 4 of the Act to execute the said order.
14. Striking feature would be that there is no saving clause provided under this Act by which any order passed in favour of a divorced Muslim woman under section 123 of the Code could be validated or liability created in the husband in this regard could be held, valid or enforceable.
15. Section 125 of the Code entitled a divorced woman to get maintenance from her husband until she is re-married Section 3(1)(a) of the Act curtailed her said right to get maintenane till the period of Iddat only. In this view of the matter section 125 of the Code so far as it had created a right to a Muslim Divorced woman to get maintenance from her husband untill she is re-married, has been impliedly repealed, So far as the right to get maintenance after the period of Iddat is concerned by this Act. This being so, a Muslim divorced woman is no longer entitled to get maintenance from her former husband after the period of Iddat as there is no saving clause in this Act. Having lost her right to get maintenance from her former husband after the period of Iddat she has lost her remedy also as provided under section 125(3) of the Code to enforce her said right in case her former husband fails without sufficient cause, to comply with the order of maintenance. Thus if a divorced Muslim woman files a petition under section 125(3) of the Code, which, in substance, is a penal provision, it will be an action without remedy. The Act, as indicated above, does not contain any saving any right created or orders passed in favour of a Divorced Muslim woman. Thus the Act of 1986 has completely obliterated the right of such woman to get maintenance. The repeal without saving such right means that such woman had never such right and in this view of the matter the said right now can not be enforced under section 125(3) of the Code. Thus, if a divorced Muslim woman divorced prior to coming into force of the Act, in whose favour order of maintenance has been passed and have become final or is pending in revision or other court being challenged by the husband is allowed to get maintenance, it will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of the Act for which it has been passed.
16. Now i proceed to apply the law on the facts stated and discussed above. In the case of Lallu Prasad v. State of Bibar (A.I.R 1976, Patna, 137) it has been laid down that the very purpose of non obstante clause is that the provision shall override any other provision and other provision shall not be of any consequence. In the case of Sarwan Singh v. Kasturi Lal ((1977) 1 SCC 750 : A.I.R 1977 Supreme Court 265) it has been laid down that when two or more laws operate in the same field each containing a non-obstante clause stating that its provisions will over ride those of any other law, the conflict has to be decided with reference to the object and purpose of the laws-where the newly introduced Act is made nugatory on account of the provisions of the existing-Act, the newly introduced Act is to prevail. The later enactment must prevail over the earlier. In the case of R.P Jain v. State of Bihar (1977 Cr. L.J, 1758) it has been held that if repealing Act or Ordinance does not save aright or remedy under the repealing Page: 70Act or Ordinance, both right and remedy are lost. In the case of United Provinces v. Mt. Atiqa Begum (A.I.R 1941 F.C 16) it has been held that when two Acts are clearly inconsistent with or repugnant to each other, the former will be deemed to have been impliedly repealed or amended as the last expression of the will of the legislature must always prevail. In addition, it is well supported from the following expression.
“If an Act expired or was repealed it was regarded in absence of provision to the contrary as having never existed.”—Maxwell 12th Edition, page 16.
17. In the case of Kamakhya Narain Singh v. State of Bihar (A.I.R 1981 Patna, 236) it has been laid down that the provisions of the Bihar & Orissa (No. 13 of 1952) Municipal Act and the Bihar Municipal Corporation Act having the same purpose and object cannot work in the same field and, therefore, the former Act must give way to the subsequent Act; meaning there by that the Bihar & Orissa Municipal Act shall be deemed to have been repealed by the Corporation Act in the area where it has been enforced.
18. Therefore, on consideration to the entire facts and circumstances, now the opposite party has not become entitled for maintenance what-so-ever and thus her application for grant of maintenance is rejected and this application is allowed.
Alert