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1975 DIGILAW 44 (CAL)

Qumruddin v. Sueba Khatoon

1975-02-12

NIKHIL CHANDRA TALUKDAR

body1975
JUDGMENT On a difference of opinion between Mr. Justice A. K. De and Mr. Justice R. Bhattacharya, in Criminal Revision No. 443 of 1972 the case along with the divided opinions, was laid before this Bench for appropriate orders under section 439 (1) read with section 429 of the Code of Criminal Procedure. 2. The facts leading on to the reference are short and simple. Two applications under section 488 of the Code of Criminal Procedure were filed by the first party, Sueba Khatoon, before the learned Presidency Magistrate, 12th Court, Calcutta, against the second party, Md. Qumruddin for maintenance. The first one was for maintenance of herself as the wife and the other one for her child. On 18.8.1971 the learned Presidency Magistrate allowed both the prayers and passed an order of maintenance of Rs. 20/- per month for the wife and of Rs. 15/- for the child. Later on upon an application moved before the High Court, the monthly maintenance was increased to Rs, 30/- in the case of the wife and Rs. 20/in the case of the child. On 25.8.1971 the second party filed an application under section 488 (5) of the Code of Criminal Procedure for cancellation of the order passed on 18.8.1971 on the ground that he had divorced Sueba Khatoon on that very day by pronouncing "talak" three times in the presence of witnesses, and the learned Presidency Magistrate directed the said application to be kept on record for being considered at the time when Sueba Khatoon would take steps for enforcement of the order. On 19.2.1972 Sueba Khatoon filed a petition for enforcement of the order of maintenance under section 488 (3) of the Code of Criminal Procedure on the ground that the second party had failed to comply with the older in question and the latter was directed to show cause. Sueba was also directed to show came as to why the application under section 488 (5) of the Code of Criminal Procedure filed by the second party should not be allowed. Both the parties showed cause. Sueba Khatoon denied the allegation of divorce while Qumruddin reiterated the plea of divorce which disentitled the wife from getting any maintenance as his wife. Both the parties showed cause. Sueba Khatoon denied the allegation of divorce while Qumruddin reiterated the plea of divorce which disentitled the wife from getting any maintenance as his wife. Sri B.G. Chakrabarty, Presidency Magistrate, 12th Court, Calcutta, by his order dated the 25th May, 1972 rejected the petition of the second party under section 488 (5) of the Code of Criminal Procedure on the ground that the said provision has no manner of application as it did not come within anyone of the three clauses thereunder. He further held that the criminal court had no jurisdiction to entertain the plea of divorce when denied by the wife and the same has to be proved in a competent court under the provisions of the Mohammedan Law. After rejecting the petition under section 488 (5) of the Code of Criminal Procedure, the learned Presidency Magistrate proceeded to dispose of the application under section 488 (3) of the Code of Criminal Procedure holding, inter alia, that the factum of "tin talak" cannot constitute sufficient' cause for failure to pay within the ambit of section 488 (3) of the Code of Criminal Procedure. The husband was accordingly directed to pay all arrears of maintenance for both the wife and the child by 12.6.1972. in default, a warrant was to be issued for realising the dues as prayed for. The said order was impugned and a Rule was obtained, being Criminal Revision No. 443 of 1972. Mr. Justice A.K. De and Mr. Justice R. Bhattacharya, who heard the matter had a difference of opinion and the case along with their divided opinions was placed before me for appropriate orders under section 439 (1) read with section 429 of the Code of Criminal Procedure. 3. The answer to the point raised can be put in a short compass. It is undoubtedly true that none of the three specific clauses which are in the alternative, as contained in sub-section 5 to section 488 of the Code of Criminal Procedure, is attracted to the facts of the present case and as such the relevant application thereunder is not sustainable. The learned Presidency Magistrate, 12th Court, Calcutta, was accordingly right in rejecting the said application. The learned Presidency Magistrate, 12th Court, Calcutta, was accordingly right in rejecting the said application. The view taken by the learned Presidency Magistrate, however, with regard to section 488 (3) of the Code of Criminal Procedure, as approved of by my learned brother A. K. De J. appears to be circumscribed. The husband who failed to comply With the order passed for paying the maintenance should, in a proceeding filed by the wife for enforcement of the order of maintenance, be not shut out from taking the plea that the failure un his part to comply with the order in question is based on sufficient cause viz., the factum of divorce. Accordingly, there is no cloud on the point at issue and the answer- thereto is short and simple. The prayer made on behalf of the husband in his application under section 488 (5) of the Code of Criminal Procedure may not be pertinent and as such not maintenable in the context of that provision but it certainly does constitute a relevant point for consideration in an application, filed on behalf of the wife, under section 488 (3) of the Code of Criminal Procedure. The ultimate order therefore, passed against the second party, Mohammed Qumruddin, by the learned Presidency Magistrate to pay the entire amount of maintenance due to her and the child, without considering on merits the material objection raised on the purported ground that the same was not maintanable is an application under section 488 (3) of the Code of Criminal Procedure, is unwarranted and untenable. Justice demands that the matter should go back to the court below for a proper consideration of the plea taken by the husband before the ultimate order is passed. I agree accordingly with the ultimate conclusions though not with the reasonings, as arrived at by, my learned brother, R. Bhattacharya, J. 4. In the result, my opinion is that the learned Presidency Magistrate, 12th Court, Calcutta, did not exercise his discretion properly in passing the impugned order dated the 25th May, 1972 and I agree with the conclusions arrived (it by my learned brother, R. Bhattacharya. J. that the impugned order should be set aside and the matter be remitted to the court of the learned Presidency Magistrate for a proper disposal. J. that the impugned order should be set aside and the matter be remitted to the court of the learned Presidency Magistrate for a proper disposal. I accordingly set aside the impugned order dated the 25th May, 1972 passed by Sri B.G. Chakraborty, Presidency Magistrate, 12th Court, Calcutta in case no. M/996 of 1969; and I remand the case to the court below for disposing of the application filed by the first party under section 488 (3) of the Code of Criminal Procedure, in the light of the observations made above and expeditiously. Let the records go down as early as possible.