It is pertinent to note that right of future maintenance to a wife who has not re-married and is not able to maintain herself and is otherwise not dis- entitled for claiming maintenance, or to have a fair provision is a right in continuity and recurrence.
23. In absence of any express provision of law to the contrary, the nature of this right is such that it does not extinguish.
24. Any provision of law barring the remedy in the event of failure of a party to take recourse to avail the same within time specified is not shown.
25. Considering the background in which the remedial legislation - said Act was enacted and has been interpreted by Hon'ble Supreme Court, it goes to
suggest that the said Act, as enforced, will have to be enforced as it stands and without creating artificial barriers of attempting to fit the case within Article 137 of the Limitation Act.
26. If the law intends not to prescribe limitation, it means so, and this omission will have to be respected as conscious omission and there are no grounds coming forward permitting to fill in the alleged omission taking shelter of Article 137 of the Limitation Act.
27. In these premises, this Court holds that the Law of Limitation has no application to the right of a Muslim woman filing an application under Section 3 [1] [a] of the Muslim Women [Protection of Rights on Divorce] Act, 1986, it being a right of recurring nature, and bar of limitation is not laid down.
Bombay High Court
Skh. Hafiz Skh. Habib vs State Of Maharashtra on 9 July, 2008
Bench: A. H. Joshi
citation;AIR 2009(NOC)1011bombay
1. On 22nd March, 2006, this Court ordered Rule, which was made returnable early.
2. The admitted position, as a background of case, can be narrated as follows:- [a] Marriage was solemnized on 30th July, 1982.
[b] Agreed amount of "Mehar" is Rs. 5051-00.
[c] According to husband, wife has left husband's house, and it was not a case of neglect or refusal.
[d] No maintenance for the period of "Iddat" or amount of Mehar was not paid.
[e] Wife filed Misc. Criminal Case No. 23 of 1983, under Section 125,
Criminal Procedure Code which was allowed, granting maintenance of Rs.100/- per month.
[f] This order was confirmed by Revisional Court.
[g] The wife filed proceedings for recovery of maintenance in Misc. Criminal Case No. 23 of 1983. During pendency of this application, the Muslim Women [Protection of Rights on Divorce] Act, 1986, came into force.
[h] Petitioner applied under Section 7 of the Act and wife's recovery
proceedings were closed, and this order has attained finality.
3
[i] Wife filed Regular Civil Suit No. 580 of 1984 for recovery of Mehar, which has been decreed and amount has been recovered.
[j] Wife filed a suit for recovery of her belongings which was decreed and decree is satisfied.
[k] On 20th April, 1987, wife moved application under Section 125, Criminal Procedure Code, being Misc. Criminal Case No. 29 of 2000, which has been rejected, and this order, which has attained finality, has not been challenged.
3. On 17th January, 2002, wife filed an application under Section 3 of the Muslim Women [Protection of Rights on Divorce] Act, 1986, [hereinafter referred t as "said Act"], for fair provisions, and this application has been allowed and the Judgment has been maintained in Revisional Court.
4. By present Writ Petition, the petitioner has challenged the order passed by Judicial Magistrate First Class as well as the order of the Sessions Court confirming it.
5. Though the grounds of challenge are manifold, emphasis is laid on Ground Nos. [e], [f], [i] and [j]. 4
Instead of description, those are quoted ad verbatim as below:-
"[a] ....
to
[d] ....
"[e] Both the courts below ought to have seen that Muslim Women [Protection of Rights on Divorce] Act, 1986, came into force on 19.05.1986 and as such it is applicable to the Muslim women who are divorced by their husbands after coming into force of that Act i.e., after 19.05.1986. The said Act cannot be given retrospective effect in order to make it applicable to the Muslim women who were divorced prior to commencement of the said Act." "[f] Both the courts below failed to appreciate that, the application under the provision of section 3 [2] of Muslim Women [Protection of Rights on divorce] Act, 1986 is maintainable only in case of breach of provisions under section 3 [1] of the said Act. In other words the Muslim woman who is divorced by her husband, will get a right to approach the Court under the provisions of section 3 [2] of the said Act, only in case her husband failed to comply with the provisions under section 3 [1] of the said Act at the time of divorce."
[g] .....
[h] .....
"[i] Both the courts below ought to have taken into consideration that the respondent no.2 had approached the Court after 18 years of divorce, and thus on this ground also the 5
application under section 3 of Muslim Women [Protection of Rights on Divorce] Act, 1986, was not tenable." "[j] Both the courts below ought to have seen that the rights given to the divorced Muslim women under the Muslim women [Protection of Rights on Divorce] Act, 1986 are basically of civil nature and as such the provisions of Limitation Act are applicable for the purpose of exercising such civil rights. It is thus clear that after expiry of three years the rights provided under Muslim Women [Protection of Rights on Divorce] Act, 1986, become time barred. It is thus submitted that on this count also the courts below ought to have dismissed the application of the respondent no.2 as time barred." [quoted from page nos. 6, 7 and 8 of the writ petition paper book]
6. These aspects were urged before the Sessions Court as well.
7. Learned Advocate Mr. D.L. Dharmadhikari for the petitioner placed reliance on following reported judgments to substantiate his contention :- [1] Faridabano Shahabuddin Kadri & another Vs. Shahabuddin Muzzarodddin Kadri & another [1993 Mh. L.J. 252],
[2] Karim Abdul Rehman Shaikh Vs. Shehnaz Karim Shaikh & ors. [2000 (3) Mh. L.J. 6
555],
[3] Danial Latifi & another Vs. Union of India [(2001) 7 SCC 740], and
[4] Naseemunisa Begum d/o Shaikh Yasin & another Vs. Shaikh Abdul Rehman s/o Shaikh Gaffar [2002 (2) Mh. L.J. 115].
8. Learned Advocate Mr. A.B. Mirza for respondent no.2 has placed reliance on the Judgment of Hon'ble Supreme Court in case of Shamim Ara Vs. State of U.P. & another [AIR 2002 SC 3551].
9. Heard parties at length and perused the judgments.
10. Points, which call for decision in view of the submissions are:-
[1] Whether a Muslim wife, who was given a divorce prior to commencement of the Muslim Women [Protection of Rights on Divorce] Act, 1986, has a right to apply
under this Act in view of the
dictum of this Court in Faridabano Shahabuddin Kadri's case?
[2] Is a Muslim divorced wife entitled to further payment of reasonable provision under the Muslim Women [Protection of Rights on Divorce] Act, 1986, once the amount of Mahr has been paid to her?
7
[3] Is Law of Limitation applicable to filing of an application under
Section 3 of the Muslim Women
[Protection of Rights on Divorce] Act, 1986?
[4] Is the application hit by the bar of Limitation in view of Article 137 of the Limitation Act?
What is the dictum in Faridabano's case?
11. Petitioner's submission based on Faridabano's case [supra] is that the said Act has created a right for the first time as no such right existed prior. He, therefore, urges that a wife, who claims amount towards reasonable provision after commencement of the Act, if was divorced prior to the said Act, would not be entitled to the benefit, as, according to him, the law is now well settled, in view of this judgment that the provisions of the said Act are not retrospective.
12. In Faridabano's case, this Court was dealing with the question as can be spelt out from what this Court has described in Paragraph 8 at page 252 of the report, which reads as follows:- "8. .....The real issue before us is as to whether any rights have been vested 8
in the divorced Muslim women who are applicants before us by virtue of orders in their favour under the Criminal Procedure Code prior to the passing of the new Act, and if so, whether the new Act extinguishes or saves those rights and if the latter is true, whether they are enforceable in law. ....."
13. This Court has held in Faridabano's case that Section 7 of said Act provides that pending proceedings under Sections 125 and 127 of Criminal Procedure Code would be tried and decided in accordance with the provisions of new Act, and it is with this point of view of Section 7 of said Act. This Court has, in terms, held that the right once accrued under provisions of Section 125 of Criminal Procedure Code is not extinguished by virtue of new Act, and application for enforcement of right which has culminated into an order of Court under Section 125/127, Criminal Procedure Code, does not extinguish or frustrate, and that from this point of view, the Act is not retrospective. Paras 14, 18, 19 and 22 of Judgment in Faridabano's case, make above discussed position amply clear. The Act not to have retrospective effect, thus, has said limited meaning.
9
Effect of Dictum in case of Danial Latifi & another
14. The legal preposition which now governs the field, is that the pre-existing right of a Muslim divorced woman for fair provision for maintenance from husband, has been redefined by said Act, and what shall be the fair provision is to be decided by the Magistrate on facts of a case.
15. The point as to right of divorced Muslim woman as asbove has attained finality by virtue of the Judgment of Hon'ble Supreme Court in case of Danial Latifi & another Vs. Union of India [(2001) 7 SCC 740]. The law is then restated in the Division Bench Judgment of this Court in case of Naseemunisa Begum & another Vs. Shaikh Ab. Rehman & another [2002 (2) Mh. L. J. 115]. All controversies as to law relating to right of a Muslim woman to claim "maintenance after divorce for the period of Iddat and fair and reasonable provision even after the period of Iddat" are now resolved. 10
16. Right of maintenance, prior to the commencement of the Act found in personal law, was enforceable, inter alia, under Section 125, Criminal Procedure Code, and the obligation of a Muslim husband to maintain his wife, including a divorced wife, which was pre-existing, has been re-affirmed and reiterated by a statutory enactment.
17. It is, therefore, of no gain urging that the right has been created de nova, and the Act is not retrospective and the Muslim woman, who is divorced prior to the Act and has been provided with maintenance during Iddat period, amount of Mahr, dowry etc., and should not be entitled to get an order of a reasonable and fair provision for her future maintenance under the new Act.
18. The reliance of the petitioner on the reported Judgment of this Court in case of Faridabano Shahabuddin Kadri & another Vs. Shahabuddin Muzzaroddin Kadri & another [cited supra] is, thus, one-sided and a product of misreading of the said Judgment and is contrary to the scheme as enunciated in the said 11
judgment. This submission is also contrary to the interpretation of the said Act done by the Judgment of Hon'ble Supreme Court in Danial Latifi's case.
19. The law and the judgments relied upon by the petitioner do not recognize carving out two different classes of women who were divorced prior to commencement of the Act of 1986 and later. The right of maintenance and fair provision is uniformly available.
Applicability of Limitation Act
20. Petitioner's next argument is that application under Section 3 of said Act which is a remedy of civil nature does not fall in any one of the Articles of Limitation Act, 1963, and, therefore, Article 137 thereof would apply. According to the petitioner, alternatively, the respondent should have filed the application within three years from the commencement of said Act.
21. It is further urged that in any of the 12
reported judgments, it is not held that period of limitation prescribed by Limitation Act does not apply for filing an application under Section 3 of the said Act, and, therefore, petitioner's objection be accepted.
22. It is pertinent to note that right of future maintenance to a wife who has not re-married and is not able to maintain herself and is otherwise not dis- entitled for claiming maintenance, or to have a fair provision is a right in continuity and recurrence.
23. In absence of any express provision of law to the contrary, the nature of this right is such that it does not extinguish.
24. Any provision of law barring the remedy in the event of failure of a party to take recourse to avail the same within time specified is not shown.
25. Considering the background in which the remedial legislation - said Act was enacted and has been interpreted by Hon'ble Supreme Court, it goes to 13
suggest that the said Act, as enforced, will have to be enforced as it stands and without creating artificial barriers of attempting to fit the case within Article 137 of the Limitation Act.
26. If the law intends not to prescribe limitation, it means so, and this omission will have to be respected as conscious omission and there are no grounds coming forward permitting to fill in the alleged omission taking shelter of Article 137 of the Limitation Act.
27. In these premises, this Court holds that the Law of Limitation has no application to the right of a Muslim woman filing an application under Section 3 [1] [a] of the Muslim Women [Protection of Rights on Divorce] Act, 1986, it being a right of recurring nature, and bar of limitation is not laid down.
28. In so far as the aspect of payment of Mahr under decree of Court is concerned, the amount of Mahr has nothing to do with right of maintenance either during period of Iddat, and fair provision until the 14
wife re-marries and even her capacity to maintain herself. Any provision of law is not shown by the petitioner basing the argument that upon payment of Mahr, the wife would not be entitled to maintenance.
29. Question Nos. 1 and 2 framed by this Court in paragraph no.10 are answered in affirmative and Question No.3 is answered in negative. Question No. 4 does not survive.
30. In the result, petition fails. Rule is discharged with costs.
JUDGE
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