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CourtCase NoDate of Judgment
High Court of Judicature at AllahabadCri. Misc. Application Appeal No. 2120 of 198223-10-1990
Judge(s)
THE HONOURABLE JUSTICE K. NARAYAN
Parties
Syed Akbar Ali v/s Session Judge
Advocate(s)
For the Appearing Parties: --------------
Equivalent Citation(s)
1991 (2) DMC 626
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  Jugraj Singh Versus State of U P     Raja Ram Versus Jam Mala Jain     Raja Ram Versus Jam Mala Jain  

judgement - K. NARAYAN J.(1) THIS petition under Section 482 Cr. P. C. is directed against the orders dated 20. 3. 1980 and 30. 10. 1981 recorded by the Munsif Magistrate 1st Class Sambhal and the Sessions Judge moradabad respectively awarding maintenance of Rs. 100/- p. m. under Section 125 of Cr. P. C. (2) ADMITTEDLY the petitioner namely Syed Akbar Ali was married to Smt. Rashida Khatoon some wherein 1975. There were some differences and according to the wife she was also divorced by the husband. This fact of divorce was denied by the husband and there have been findings against him in the judgments of the Courts below. Ultimately after considering the entire materials on record the learned Magistrate has passed an order of maintenance at the rate of Rs. 100/- p. m. and the same was confirmed by the Sessions Judge in the revision. (3) BEFORE me the learned Counsel for the petitioner has urged that no finding was recorded by the learned Magistrate and the learned Sessions Judge about the earning capacity of the wife. It is true that under Section 125 of the Code of Criminal Procedure it is a primary duty of husband to maintain the wife unable to maintain herself but at the same time there is no presumption that every wife should be able to earn and maintain herself. Unless the petitioner or the other party had raised this plea before the Magistrate there could be no issue about the earning capacity of the wife nor there could be any finding which will lead Courts to consider this position in a petition of the present nature. The amount of Rs. 100/- p. m. is a bare minimum for sustenance to keep the body and soul together. (4) LEARNED Counsel for the petitioner had also referred to the provisions of the Muslim Women (Protection of rights on Divorce) Act 1986 in order to make out that the provisions relating to maintenance of a muslim women have been changed a lot. I am afraid the provisions of this Act would not be available to the petitioner for the simple reason that the act cannot be considered to be retrospective in effect. A plain reading of the Act would show that it has provided a particular procedure to be followed by a Magistrate while dealing with an application under Section 125 cr. P. C. by a divorced muslim lady and the procedure is almost a time bound programme. Under section 7 of the Act every application by a divorced woman under Section 125 or 127 of the code of Criminal Procedure 1973 (2 of 1974) pending before a Magistrate on the commencement of this Act had been directed to be decided and disposed of in accordance with the provisions of that Act. It would in errect mean that where the proceedings are pending before a Magistrate on the date of enforcement of the Act they would be disposed of according to the provisions of that Act and for that disposal the provisions of the act would over ride the provisions of the Code of Criminal Procedure. Under Section 3 of the Act the provisions have been made for recovery of maintenance for the period of dat or the return of dowry and payment of dower within a short time. That time can not be obtained again. If there have been no payment of dower or return of articles of dowry because at that time they were all redundant for the purposes of maintenance all that cannot be done now. It would be only after the return of those articles that the provisions of Section 4 (payment of maintenance) would be applicable and therefore the provisions of this Act would not be available. Not only this after the enactment of this under Section 5 therefore the parties could have had an option to convey before the magistrate as to whether they would like to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure. This option also cannot be exercised now. For these reasons the provisions contained in this Act cannot be made applicable to the present petition. (5) IT was lastly urged on behalf of the petitioner that there was no sufficient material to come to the conclusion to fix the amount of maintenance at Rs. 100/- p. m. Irrespective of any other income the maintenance would best least a sustenance to keep the body and soul together. In these bard days if a person can manage to live with a sum of Rs. 100/- P. M. he would be achieving a wonder. Naturally she must be doing some thing more. In any case the thought of reducing the amount of maintenance to less than Rs. 100/- p. m. is inconceivable. (6) LASTLY it may be mentioned that in a petition under Section 482 Cr. P. C. it is not only the right and Legalities that have to be gone into. The basic aspect to be considered would be if there has been an abuse of the process of any Court or if any interference by the High Court is necessary to secure the ends of justice. Obviously as on the date of decision the decision was perfectly $n accordance with the law and there was no abuse of the process of Court as a divorced wife was entitled to maintenance and a barest minimum was awarded. (7) IN the result I see no merits in this petition and no person to interfere with the orders recorded by the Magistrate and the Sessions Judge. The petition is accordingly dismissed.