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K. Raza Khan Vs. Mumtaz Khatoon and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1976CriLJ905
AppellantK. Raza Khan
RespondentMumtaz Khatoon and anr.
Excerpt:
.....is excluded. - (3) where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband,,the magistrate shall, if he is satisfied that- (a) the woman has, after the date of such divorce, remarried, cancel such order as from tie date of her remarriage; so, we have m hesitation in holding that under section 125(1) of the new code even a woman who has been divorced by her husband bo-fore 1-4-1974 can claim maintenance, provided the other conditions are satisfied. it is precisely to protect such unfortunate women that section 125(1) is enacted in the present form. 14. in the result, we hold that a woman who has been divorced by her husband even before the code of criminal procedure 1973 had come into force, is..........on 1-4-1974 but not a woman who has been divorced before that date. it is urged that under of old code a divorced woman had no such right and, therefore, section 125 of the new code is only prospective in operation. in this connection, be referred to some passages from maxwell on interpretation of statutes (11th edition, at page 204), and the decisions in satyanarayana v. seetharamamma air 1963 andh pra 27? (fb) and workmen of f. t. and r- co. v. management, air 1978 sc 1227. on hie contrary, the learned counsel for se respondent bas submitted as section 125 of file new code is retrospective m operation and he also referred to certain passages in principles of statutory interpretation by g. p. singh and the decision in giuni v. babu lal air 1952 madh b 131.4. for a proper appreciation.....
Judgment:

Gangadhara Rao, J.

1. This Revision case is referred to a Bench by our learned brother Madhusudan Rao, on the ground that it involves a question of considerable importance and is bare of authority.

2. The question for our consideration is whether a woman who has been divorced before the Code of Criminal Procedure, 1.973 (hereinafter called the new Code) came into force, is entitled to claim maintenance tinder Section 125 of the said Code. The respondent Mumtaz Khatoon, was divorced by her husband, Raza Khan, on 2-2-1974. The new Code came into force on 1-4-1974, She filed a petition for maintenance under Section 125(1) of the new Code on 6-5-1974 before the' Additional Judicial First Class Magistrate, Kurnool. The husband took a preliminary objection that the petition was not maintainable, since he had divorced his wife before the New Code came into operation and Section 125(1) of the new Code was not retrospective in operation. The learned Magistrate upheld his objection and dismissed that petition. Against that order the wife filed Criminal Revision Petition 20 of 1974 before the Additional Sessions Judge, Kurnool. He allowed it holding that Section 125 of the new Code was retrospective in operation and directed the Magistrate to dispose of the petition on merits. Questioning the validity of flat order the husband has filed this revision in this Court. .

3. It is contended by the learned Counsel for the petitioner that Section 125 of the new Code is prospective and not retrospective in operation and it applies only to a woman who has been divorced by her husband after the new Code came into force on 1-4-1974 but not a woman who has been divorced before that date. It is urged that under of old Code a divorced woman had no such right and, therefore, Section 125 of the new Code is only prospective in operation. In this connection, be referred to some passages from Maxwell on Interpretation of Statutes (11th Edition, at page 204), and the decisions in Satyanarayana v. Seetharamamma AIR 1963 Andh Pra 27? (FB) and Workmen of F. T. and R- Co. v. Management, AIR 1978 SC 1227. On Hie contrary, the learned Counsel for Se respondent bas submitted as Section 125 of file New Code is retrospective m operation and he also referred to certain passages in Principles of Statutory Interpretation by G. P. Singh and the decision in Giuni v. Babu Lal AIR 1952 Madh B 131.

4. For a proper appreciation of the question raised in this petition, it is necessary to refer to Sections 125 and 127 of the new Code in so far as they are relevant:.

125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain--

(a) His wife, unable to maintain herself

(b) xx xx xx(c) xx xx xx(d)...

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of Ms wife...at such monthly rate not exceeding five hundred rupees in the whole.

XXX XXExplanation: For the purposes of this Chapter-

(a) xx XX

(b) Vile' includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance.

127. Alteration in allowance:

XX XX XX(2) Where appears of fee Magistrate that, in consequence of any decision of competent Civil Court, any order made under Section 125 should fee cancelled or varied, he shall cancel the order or as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband,, the Magistrate shall, if he is satisfied that-

(a) the woman has, after the date of such divorce, remarried, cancel such order as from tie date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said1 order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) xx xx xx(ii) xx xx xx(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125 the Civil Court shall take into account the sum which has been paid to, or received by, such person as monthly allowance in pursuance of the said order.

5. A plain reading of Section 125 of the new Code shows that a woman who has been divorced by her husband or who has obtained a divorce from her husband can also claim maintenance, if she is unable to maintain herself. The section does, not say that the woman should have been divorced after the new Code has come into force and there is no warrant to read any such limitations in the section. Therefore, it applies both to women who have been divorced before or after the new Code came into force. The Code of Criminal Procedure has not only dealt with the procedure but has also conferred a right is this regard. Under the corresponding Section 488 of the old Code of Criminal Procedure 1898, a wife had a right to maintenance but a divorced wife did not have. For the first time, that right is conferred upon ker under the new Code and it is in accord with social justice. The reasons for the change have been explained by the Joint Committee of the Parliament in these words:

The benefit of the provision should be attended to a woman who has been divorced from her husband, so long as she has not remarried after the divorce. The Committee's attention was drawn to some instances in which after a wife filed a petition under this section on the ground of neglect or refusal on the part of her husband to maintain her, the unscrupulous husband frustrated her object by divorcing her forthwith thereby compelling the Magistrate to dismiss the petition. Such divorce can be made easily under the personal laws applicable to some of the communities in India. This causes special hardship to the poorer Sections 1 of the community who become helpless. The amendments made by the Committee are aimed at securing social justice to woman in our society belonging to the poorer classes.

Strictly speaking, it will be incorrect to interpret this section in terms of its retroactivity.

6. In Maxwell on Interpretation of Statutes. (11th Edition) at page 211 it is stated that statute is not retrospective because a part of the requisites for its action is drawn i from a time antecedent to its passing. In Principles of Statutory Interpretation by G. P. Singh (at page 246) it is stated as follows:

Just as the fact that a prospective disqualification under a statute results from anterior misconduct, is not always taken as sufficient to make the statute retrospective, so also, the fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts, does not necessarily make the provision retrospective. The inhibition of the rule against retrospective construction is not always applicable to a statute merely 'because a part of the requisites for its action is drawn from time antecedent to its passing.' This inference may, subject to the language used, be readily drawn in regard to statutes which are remedial in nature.

7. Applying these principles of construction we hold that under Section 125 of the new Code, a present right is conferred in relation to a past event and it will not make the section retrospective. In this connection, it is also relevant to note that under Sub-section (2) of Section 125, the allowance to the woman is payable from the date of the order or from the date of application for maintenance.

8. Apart from that, it cannot be disputed that this section is both remedial and beneficial in character and in such circumstances, it is the duty of the Judge to construe the statute in such a manner as to suppress the mischief and advance the remedy. So, we have M hesitation in holding that under Section 125(1) of the new Code even a woman who has been divorced by her husband bo-fore 1-4-1974 can claim maintenance, provided the other conditions are satisfied.

9. The learned Counsel for the petitioner has referred to Satyanarayana v. Seetharamamma : AIR1963AP270 (supra), wherein the question was whether under Sub-clause (4) of Section 2 of Hindu Women's Rights to Separate Residence and Maintenance Act, 1946, a Hindu married woman is entitled to separate residence and maintenance from her husband 'if he marries again'. Construing the words 'if he marries again' it was held by the learned Judges that a Hindu wife can claim the benefits of that Act only if her husband has married again after the passing of that Act; but not before In the same decision, while construing Section 18(2)(d) of the said Act, which says that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claims to maintenance 'if he has any other wife living, the learned Judges held that the section was wider in scope and takes in all cases of husband's having their other wives living. So, that decision, far from helping the petitioner, really helps the respondent.

10. In Workmen of F. T. and R. Co. V- Management : (1973)ILLJ278SC (supra), while interpreting Section 11A of the Industrial Disputes Act, 1947 which was inseretd in 1971, it was held that, that section was prospective in its operation and applied only to disputes referred for adjudication on or after the date of its coming into force i. e. 15-12-1971. But, the wording of that Section is completely different as is evident from a perusal of paragraph 53 of that judgment.

11. In this connection, we may refer to Gunni v. Babu Lal AIR 1952 Madh B 131 (supra) while interpreting the amendment to Sub-section (3) of Section 488 of the Code of Criminal Procedure 1898, which was introduced by Criminal Procedure (Amendment) Act 1949, which says that 'if a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him', it was held by Dixit, J., that there was nothing in the Amendment Act to show that it would not be a just ground for the wife's refusal to live with her husband, if the husband has contracted marriage with another wife or taken a mistress before the amendment was made in Section 488.

12. We do not also see how the in terpretation we have placed upon Section 125 of the new Code, will in any way, work hardship, or injustice to the husband. Under Section 127 of the new Code, when an order is made under Section 125 in favour of a woman who has been divorced by her husband, the Magistrate shall cancel that order if that woman after the date of such divorce has remarried or if she has received, whether be-fore or after the date of such an order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce.

13. It is also argued by the learned Counsel for the petitioner that our interpretation of the section will open the flood gates of litigation and courts will be inundated by petitions by women who have been divorced years back. But, we are not scared away by that prospect, for we will only be doing bare justice to them which is legitimately due to them- Even before the new Code came into force if a woman has been divorced, it is the duty, both moral and legal, of her husband to maintain her. And if he has neglected to maintain her all these years, it does not mean that he should get immunity from maintaining her for the rest of her life. It is precisely to protect such unfortunate women that Section 125(1) is enacted in the present form.

14. In the result, we hold that a woman who has been divorced by her husband even before the Code of Criminal Procedure 1973 had come into force, is entitled to maintenance under Section 125(1) of the new Code, provided other conditions of that section are satisfied.

15. Consequently, we confirm the order of the learned Sessions Judge and dismiss this revision petition.


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