- (1.) S. C. Mathur, J. This First Appeal under Section 19 of the Family Courts Act, 1984 (Act No. 66 of 1984) is directed against the judgment and order dated 10th March, 1987 passed by the learned Judge, Family, Court, Luck now refusing to execute the order of maintenance passed in favour of the appellant against the first respondent in proceedings under Section 125 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), for short Code, for the period subsequent to May 18,1986 in view of the enforcement of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act No. 25 of 1986), for short 1986 Act, with effect from 19th May, 1986.
(2.) THE facts which are not in dispute are as follows: "the appellant and the first respondent were wife and husband. THEy are Muslim by religion. THEre was divorce between the two. THE appellant claimed maintenance from the first respondent under Section 125 of the Code which was granted to her by order dated 11th February, 1977. THE maintenance allowance was fixed at Rs. 60 per month. THE first respondent committed default in payment of the monthly maintenance which led to the % filing of application under Section 125 (3) of the Code by the appellant against the first respondent. Through this application she claimed recovery of maintenance allowance for the period 11th September, 1985 to 10th August, 1986. During the pendency of this application 1986 Act was enforced with effect from 19th May, 1986. In view of the enforcement of the Act the first respondent pleaded that since the appellant had been divorced by him he was not liable to maintain her and to pay her maintenance. THE Court below upheld the plea and directed recovery of arrears of main tenance allowance, only for the period 11th September, 1985 to 18th May, 1985. THE learned Judge refused to recover the amount falling due from 19th May, 1985. " The submission of the appellant's learned counsel is that a judgment, decree or an order of Court of law does not get automatically nullified by enforcement of an Act passed by the Legislature and that the Act itself must contain a specific provision superseding such judgment, decree or order. It is pointed out that 1986 Act has not been given retrospective operation and it does not contain any provision superseding or making ineffective an order of maintenance already passed under Section 125 (1) of the Code. Section 125 (1) of the Code authorises the Court to pass an order of maintenance upon proof of neglect or refusal to maintain by the person liable to maintain the applicant. Sub-section (3) provides for enforcement of the order of maintenance in the event of its non-compliance. Under this provision the Court is authorised to realise the amount due in the same manner as a fine is realised. In view of the first proviso to this sub-section the Court will proceed to recover the amount only when an application is made in that behalf. The second proviso to this sub-section and sub-section (5) prescribe situations under which the Court may refuse to proceed with recovery of the amount due. The situation contemplated by the second Proviso is unreasonable refusal by the wife to live with the husband despite offer by the latter to maintain the former on condition of her living with him. Under sub-section (5) the Court has to cancel the order of maintenance if it is established before it that the wife in whose favour order of maintenance had been passed is living in adultery or is, without sufficient reason, refusing to live with her husband or that the husband and wife are living separately by mutual consent. Section 127 (1) provides for alteration in the quantum of allowance awarded earlier on proof of a change in the circumstances of either the person paying the allowance or the person receiving the same. Under sub- section (2) the court is authorised to vary or cancel its earlier order of maintenance if that is warranted in consequence of any decision of a competent Civil Court. Under clause (a) of sub-section (3) the Court has to cancel the order of maintenance made earlier if the woman, after being divorced, remarries. Clause (b) of this sub-section reads as follows: 127 (3) (b) "the woman has been divorced by her husband and that she has received whether before or after the date of the said 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) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman the above are the only situations prescribed by the Code under which maintenance granted earlier may be varied or cancelled. In each situation an order of the Court is required. The order of maintenance does not get automatically varied or cancelled. The court below has not relied upon any of the above situations for nullifying the maintenance order, passed in favour of the appellant with effect from May 19, 1986. Our attention has not been invited to any other provisions of the Code under which the order of maintenance gets varied or nullified by mere enforcement of a subsequent legislation.
(3.) JUDGMENTS and orders of the Courts of law remain valid till they are set aside or superseded by the same Court on review or by superior Courts on appeal, revision or on any other proceeding allowed by law. They can also be superseded by legislative fiat, as the power of Legislature to legislate is plenary and is subject only to the limitations laid down in the Constitution. In the case on hand the order of maintenance has not been set aside by the same Court on review. In the present case the Judge Family Court will have to be treated as the Court which passed the order of maintenance. That Court has not cancelled the order of maintenance it has simply refused its execution on the supposition that the order of maintenance has become nonest on the enforcement of 1986 Act. We have, therefore, to see whether under the provisions of the 1986 Act the order of maintenance passed under Section 125 (1) of the Code is-rendered inexecutable with effect from the date of its enforcement. Ct was published in the Gazette of India on May 19, 1986. It does not mention any date of its commencement or enforcement. It shall, therefore, be deemed to have come into force on May 19, 1986. The ACt is a short one, containing in all seven seCtions. SeCtion 1. contains the title and mentions the territorial extent of its applicability. SeCtion 2 contains definitions SeCtion 3 deals with 'mahr' and other properties of Muslim woman to be given to her at the time of divarce. SeCtion 4 deals with order for payment of maintenance and SeCtion 5 deals with option to be governed by the provisions of SeCtions 125 to 128 of the Code. SeCtion 6 confers power on the Central Government to frame rules and SeCtion 7 contains transitional provisions. None of these seCtions contains the non-obstante clause "not withstanding any judgment, decree or order of a Court of law". In the absence of such a clause it is not possible to hold that the order of mainte nance made in favour of the appellant has become insxecutable from the date of enforcement of Ct.;