KERALA HIGH COURT

                                                  Kunhi Moyin

                                                         Vs

                                                    Pathumma

                              (A Lakshmanan, C.J. K Sankaranarayanan, J.)

                                                   01.12.1975

                                                 JUDGEMENT

A Lakshmanan, C.J.

( 1. ) THE criminal revision petition as well as the writ petitions come before us on reference
since important questions of law are involved in these cases. The main questions that arise in the
writ petitions are the following; (1)Whether S. 125 of the Code of Criminal Procedure, 1973 is
violative of Art. 14 and 19 of the Constitution; (2)Whether S. 125 offends the fundamental rights
under art. 25; (3) Whether a wife who was divorced or who obtained divorce before the Act came
into force can seek the benefit of the section. In other words, whether this section can be
retrospective in operation. (4) Whether the definition of wife in S. 125 (1) offends s. 125 (4) of
the Code. The prayer in the petitions is to declare Explanation (b)to S. 125 (1) of the Code of
Criminal Procedure, 1973, for short, the Code, ultra vires the Constitution, that it is in conflict
with the personal law of muslims and for other incidental reliefs. To put it shortly, the question
agitated before us is that since the new Code confers on wives, who have been divorced or who
have obtained divorce and remain unmarried, a right of maintenance, the relevant portion of the
section has to be struck down.

( 2. ) THE constitutional validity of the section is challenged on the basis of Art. 14 and 19 and
also as violative of Art. 25 of the constitution. The challenge under Art. 14 is not at present
available to any person with the Proclamation of Emergency by the President of India and by
virtue of the Notifications dated 25-61975 and 27 61975 issued by the President of India, under
Art. 359 (I) of the Constitution. Art. 359 reads as follows: "359 (1 ). Where a Proclamation of
Emergency is in operation, the President may by order declare that the right to move any Court
for the enforcement of such of the rights conferred by Part III as may be mentioned in the order
and all proceedings pending in any Court for the enforcement of the rights so mentioned shall
remain suspended for the period during which the Proclamation is in force or for such shorter
period as may be specified in the order. (2) An order made as aforesaid may extend to the whole
or any part of the territory of India. (3) Every order made under clause (1) shall, as soon as may
be after it is made, be laid before each House of Parliament". According to this article, after the
issuance of an order by the President, as contemplated therein, the right to move any Court for
the enforcement of such of the rights in Part III of the Constitution, as are mentioned in the
Notification, is suspended and no party can thereafter move a court for the enforcement of any
such right. If any person moves the Court for such relief, the Court will decline to entertain it. All
proceedings pending in any Court for enforcement of such rights shall remain suspended. This
will be for the period during which the proclamation is in force or for such shorter period as may
be specified in the order. The notifications under Art. 359 (1) were issued on 25-61975 and 27
61975. Therefore, all the petitions filed after 25-6-1975 will have to be dismissed and all
petitions pending on that date will have to be adjourned sine die. The learned Advocate-General,
who appeared for the state, contended further, that all interim orders passed in the writ petitions
pending on the date of the notifications have to be vacated, since not to do so would be indirectly
taking away the effect and purpose of Art. 359.

( 3. ) IN support of the contention that even interim orders passed in petitions pending before a
Court have to be vacated, the learned advocate-General sought support from the decisions of the
Supreme Court reported in Makhan Singh v. State of Punjab1 Mohan choudhury v. Chief
Commissioner, Tripura2 and Ghulam Sarwar v. Union of India3The learned Advocate-General
also relied upon various text books to reinforce his case that the Court as far as possible should
try to effectuate the purpose of the statute and not to destroy it. we think it will be enough to refer
to the following, for the purpose of disposal of this aspect of the case. In AIR. 1964 S C. 381
(supra), it is thus observed: "since the object of Art. 359 (1) is to suspend the rights of the citizens
to move any court, the consequence of the Presidential order may be that any proceeding which
may be pending at the date of the Order remains suspended during the time that the Order is in
operation and may be revived when the said Order ceases to be operative; and fresh proceedings
cannot be taken by a citizen after the order has been issued, because the Order takes away the
right to move any Court and during the operation of the Order, the said right cannot be exercised
by instituting a fresh proceeding contrary to the Order. If a fresh proceeding falling within the
mischief of Art. 359 (1)and the Presidential Order issued under it is instituted after the Order has
been issued, it will have to be dismissed as being incompetent. In other words, Art. 359 (1) and
the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban
against the institution or continuance of any legal action subject to two important conditions. The
first condition relates to the character of the legal action and requires that the said action must
seek to obtain a relief on the ground that the claimant's fundamental rights specified in the
Presidential Order have been contravened and the second condition relates to the period during
which this ban is to operate. The ban operates either for the period of the proclamation or for
such shorter period as may be specified in the Order". Several other arguments are advanced in
that case regarding the scope and ambit of Art. 359 (1), which are discussed in paragraphs, 15,19
and 26. We do not think it necessary to refer to those arguments here. Suffice it to say, that the
ratio of the case is that Art. 359 (1) and the Presidential Order issued under it, constitute a sort of
moratorium or blanket ban against the continuance or institution of any legal action for
enforcement of any such rights mentioned in the notifications, To keep alive an interim order
passed by Court and adjourn pending matters sine die would in effect be to make the
notifications issued under Art. 359 (1) ineffective and will create an anomalous situation. For
example, A and B, both entitled to identical reliefs, move the Court for enforcement of their
rights under Art. 14 of the Constitution. A files a petition and obtains a stay order prior to the
issuance of notification under Art. 359 (1) while, B moves the Court a day after the notification.
B's petition will have to be dismissed, since it was moved after the notification came into effect.
A's petition will have to be suspended and adjourned sine die keeping alive interim orders
passed. This cannot be allowed. Although an interim order of stay is an order passed on a prima
facie satisfaction such an order cannot be allowed to be in force in view of the wide language and
wide import of Art. 359 (1) of the Constitution and notifications issued thereunder. ;

Cases Referred.

1(AIR. 1964 S. C. 381)
2(AIR. 1964 S. C. 173)
3 (AIR. 1967 S. C. 1335 )