GITESH RANJAN BHATTACHARJEE, J. - (1.) THIS criminal revision has been filed under Section 484 and Section 401 of the Code of Criminal Procedure for quashing the execution case No. 7 of 1987 (arising out of Misc. Case No. 64 of 1982) pending in the Court of the learned Judicial Magistrate, 2nd Court, Arambagh in the district of Hooghly. The opposite party herein filed an application under Section 125, Cr.P.C. against the petitioner herein on 12th October, 1982 claiming maintenance for herself and her child. The petitioner and the opposite party are both Muslim by religion and they were married in the year 1964. That marriage was however dissolved by a Talaknama executed on 10th November, 1969. In the meantime however a child was born to them in April, 1969. The application for maintenance filed under Section 125, Cr.P.C. was allowed by the learned Magistrate on 30th September, 1983 and the learned Magistrate granted maintenance at the rate of Rs. 100/ - per month for the wife and Rs. 50/ - per month for the child with effect from 1st September, 1983. The said maintenance order was put to execution by the divorced wife in the impugned execution case No. 7 of 1987 which was stated on 9th March, 1987. Distraint warrant was issued in that execution case against the petitioner herein and subsequently he was arrested on the strength of a warrant of arrest issued against him in the said execution case. However, he was released on bail on condition of making payment of the arrears maintenance. The petitioner has now come up before this Court for quashing the said execution proceeding, mainly on two grounds, namely (1) that with the advent of the Muslim Women (Protection of Rights of Divorce) Act, 1986 (Act 25 of 1986) - which came into for on 19th May, 1986 - a divorced Muslim women is not entitled to any maintenance from her former husband with effect from the said date, and (2) that the impugned execution proceeding is barred by limitation. It is also the case of the petitioner herein that after his arrest and during the pendency of the impugned execution proceeding he has already paid in instalments a sum of Rs. 4,990/ - towards the maintenance. It was also canvassed on behalf of the petitioner herein as the third ground in assailing the execution proceeding that the warrant of arrest was issued against him without waiting for the execution report of the distraint warrant.
(2.) TAKING the last ground first, it appears from the certified copy of the order -sheets of the impugned execution case that there was order on 20th February, 1988 for issuing distraint warrant against the petitioner herein but as that was not issued for some reason, there was a fresh order on 3rd January, 1990 for issuing distraint warrant fixing 17th February, 1990 for E.R. (Executive Report). No execution report was, however returned. The learned Magistrate issued warrant of arrest against the present -petitioner by his order dated 10th August, 1990 when no E.R. of the distraint warrant was yet received. In this connection, we may refer to sub -section (3) of Section 125, Cr.P.C. which provides that if any person fails without sufficient cause to comply with the order of maintenance the Magistrate may for every breach of the order issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment, if sooner made. It is, therefore, evident that warrant of arrest, obviously for the purpose of effecting imprisonment of the person liable to pay maintenance should not be issued unless the whole or any part of the maintenance due remained unpaid after the execution of the distraint warrant. Therefore the warrant of arrest should not be issued before receiving the execution return of the distraint warrant and before ascertaining therefrom whether the whole of the maintenance recoverable or any part thereof has yet remained unpaid after the execution of such distraint warrant. The Magistrate should not issue warrant of arrest before return and consideration of the execution report of the distraint warrant. That question is however only of academic interest in the case now inasmuch as the petitioner herein is no more in custody and all so because any irregularity in the matter of issuing warrant of arrest will not vitiate the entire execution proceeding.
(3.) THE question of limitation as raised by the petitioner herein is also not wholly without substance. The first proviso to sub -section (3) of Section 115 provides that no warrant shall be issued for the recovery of any amount due under Section 125 unless the application be made to the Court to levy such amount within the period of one year from the date on which it became due. There is no doubt that the said proviso does not wash away the liability to pay arrear maintenance which has become due under the order passed by the learned Magistrate. The proviso only puts a bar against recovery of such amount by issuing warrant for recovery of the amount for the past period beyond one year from the date on which the application was made for levying the same in that manner. In the present case since the application for execution of the maintenance order in the manner provided in Section 125, Cr.P.C. was filed about three and half years after the passing of the maintenance order, clearly the arrear amount for the entire back period was not recoverable by issuing warrant or levying the amount by distraint warrant and any distraint warrant could not have been issued for recovery of maintenance for any past period beyond one year from date of the application for realization of the same in that manner. It has been argued by Mr. Habibullah appearing for the opposite party herein that the entire amount for the whole of the back period became due when the execution was filed and, therefore there was no question of the application for execution being barred by limitation. This argument of Mr. Habibullah, I must say, is not tenable. Under a maintenance order when any one is directed to pay maintenance at a certain rate per month the maintenance amount for every month, unless otherwise directed, becomes payable in that month, but if not paid during the month it becomes recoverable on the expiry of the month and, therefore the application for recovery of the same will have to be made within one year from the expiry of that month, except, of course where any maintenance for any back period becomes payable by virtue of any subsequent order of Court in which case the arrears becomes payable on the date of the order of the Court or on such future date, if any, as may be fixed by the Court for payment. Now coming to the main question as to whether the opposite party herein being a divorced Muslim woman is entitled to maintenance from her former husband on the basis of an order of maintenance passed under Section 125, Cr.P.C. long before the advent of the Act 5 of 1986, Mr. Himangshu Kumar Dey, appearing for the petitioner submitted that under the provisions of Act 25 of 1986 a divorced Muslim woman is not entitled to any maintenance from her former husband except for the period of iddat. He further submitted that whatever might have been the law before the said Act 25 of 1986 came into force, this much is certain that the right of a Muslim divorced woman to receive maintenance from her former husband beyond the period of iddat ceased as soon as the said Act came into force and thereafter her right to maintenance is governed by the provisions of the said Act. Mr. Habibullah, on the other hand, submitted that Section 3 of the Act of 1986 provides inter alia that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband Mr. Habibullah laid emphasis on the expression 'within the iddat period' used in that connection in Section 3 of the said Act and submitted that the said expression only shows that the husband's liability to make reasonable and fair provision of maintenance has to be discharged within the iddat period and it is not that such liability to pay maintenance is confined only to the iddat period, else the legislature would have used the expression for the period instead of 'within the iddat period' as used in that section. On proper consideration of the entire scheme of the said Act, it is however difficult to accept the interpretation advanced by Mr. Habibullah., Section 4 of the said Act provides for maintenance of a divorced Muslim woman by her relatives or Wakf Board after the iddat period where she has not remarried and is not able to maintain herself. The former husband of the woman does not come within purview of said Section 4, Section 5 provides that the divorced woman and her former husband may in the manner provided therein opt for being governed by the provisions of Section 125 to 128, Cr.P.C. where a divorced woman made an application under sub -section (2) of Section 3 for order of maintenance etc. admissible under the said section of the Act 25 of 1986. Section 7 of the said Act provides that every application by a divorced woman under Section 125 or Section 127, Cr.P.C. pending before the Magistrate on the commencement of the said Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the said Act be disposed of by the learned Magistrate in accordance with the provisions of the said Act. Considering the scheme and the provisions of the said Act 25 of 1986 it is not doubt clear that the liability of the former husband to pay maintenance for the divorced woman is, however, limited to iddat period only. Claim of a divorced Muslim woman for maintenance against her former husband beyond iddat period is not therefore tenable either under the said Act 25 of 1986 or under Section 25, Cr.P.C. except of course, where the parties opt under Section or Section 7 of the said Act to be governed by the relevant provisions relating to maintenance as contained in the Code of Criminal Procedure.;