Haroon Rashid v. Raqeeba Khatoon — 1990 DIGILAW 387 (PAT)

Judgment S.B.Sinha, J. 1. This application is directed against the order, dated 9-1-1990 passed by Sri Damodar Prasad, 5th Additional Judicial Commissioner, Ranchi in Criminal Revision No 52/89, affirming the order, dated 22-4-1989 passed by Sri P. P. Pandey, Judicial Magistrate, 1st Class, Ranchi in Misc. Case No. 57/85, whereby and whereunder the said learned court directed the petitioner to pay a sum of Rs. 8,800 to the opposite-party purported to be in terms of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as the said Act). 2. Shorn of all unnecessary details, the fact of the matter is that on 11-11-1985 the opposite-party filed an application against the petitioner purported to be under Section 125 of the Code of Criminal Procedure, 1973 wherein, she claimed maintenance at the rate of Rs. 500 per month from the petitioner. The said proceeding was registered as Misc. case No. 57/85. 3. On or about 4-12-1986 the petitioner appeared in the said proceeding and filed his show cause on 12-3-1987 wherein, inter alia, he stated that the opposite-party was not entitled to any maintenance as he was ready and willing to keep her with him. 4. On 14-7-1988, however, the petitioner filed an application to the effect that on 11-7-1988 he has divorced the opposite-party and as such the said proceeding under Section 125 Cr. P. C. be dropped. The said application was rejected by the learned court below by an order, dated 18-1-1989. 5. The petitioner, however, on 4-2-1989 filed an application alleging inter alia, therein that in view of provisions of the said Act, he was prepared to pay the dower debt and reasonable and fair provision and maintenance for Iddat period. The opposite-party filed a reply to the said application. 6. By reason of on order, dated 22-4-1989, the learned Judicial Magistrate directed the petitioner to pay a some of Rs. 8800 to the opposite-party. The said learned court arrived at the aforementioned figure on the basis (A) Rs. 5,000 on account of Den Mohar. (B) Rs. 2600 towards the value of the two Dinars sum which was also to be paid by way of dower debt to the opposite party by the petitioner at the rate of Rs. 1,300 each. (C) Rs. 1,200 by way of provision and maintenance for the Iddat period at the rate of Rs. 400 per month for three months. 7. 2600 towards the value of the two Dinars sum which was also to be paid by way of dower debt to the opposite party by the petitioner at the rate of Rs. 1,300 each. (C) Rs. 1,200 by way of provision and maintenance for the Iddat period at the rate of Rs. 400 per month for three months. 7. It is admitted at the bar that the petitioner has deposited a sum of Rs. 8,200 and the opposite-party has withdrawn the said amount purported to be under protest. 8. The petitioner being aggrieved by and dissatisfied with the said order, dated 22-4-1989 passed by the learned Judicial Magistrate preferred a revision application in the court of Judicial Commissioner, Ranchi which was registered as Criminal Revision No. 52/89. The said revision application was eventually transferred for disposal to the court of 5th Additional Judicial Commissioner, Ranchi. 9. By reason of the impugned judgment, dated 9-1-1990 the learned Revisional Court while dismissing the said revision application opined that a proceeding under Section 125, Cr. P. C. will continue even after the divorce. 10. This application under Section 482 Cr. P. C. has been filed by the petitioner in view of the aforementioned opinion expressed by the learned court of revision below. 11. While admitting this application, by an order, dated 9-2-1990, a learned Single Judge of this court opined that this application under Section 482 Cr. P. C. being in the nature of Second Revision application was not maintainable. The learned Judge also doubted the correctness of a decision of this Court in Ishwar Dayal Singh and others V/s. The State of Bihar, 1980 BBCJ 436 . This case was therefore, directed to be heard by a Division Bench. 12. In the aforementioned circumstances, this application has been placed before us for hearing. 13. Mr. P. K. Prasad, the learned counsel appearing on behalf of the petitioner submitted that the power of this Court in terms of Section 482 of the Code of Criminal Procedure being inherent in nature is not circumscribed by any other provisions thereof. According to the learned counsel, this Court is entitled to exercise its inherent power in all such cases where the same is not circumscribed by a provision contained In a Code of Criminal Procedure either expressly or by necessary implication. 14. According to the learned counsel, sub-section 3 of Section 397 Cr. According to the learned counsel, this Court is entitled to exercise its inherent power in all such cases where the same is not circumscribed by a provision contained In a Code of Criminal Procedure either expressly or by necessary implication. 14. According to the learned counsel, sub-section 3 of Section 397 Cr. P. C does not postulate creation of an embargo in the exercise of jurisdiction of this Court in terms of Section 482 of the Code of Criminal Procedure. 15. Apart from the decision of Ishwaf Dayal Singh and others v. The State of Bihar, 1980 BBCJ 436 , the learned counsel relied upon in Madhu Limaye V/s. The State of Maharashtra, AIR 1978 SC 47 ; Raj Kapoor and others V/s. State (Delhi Administration) and others, AIR 1980 SC 258 Municipal Corporation of Delhi V/s. Ram Kishan Rohtagi and others AIR 1983 SC 67 and in Mahesh Chandar Singh V/s. Raghunandan Prasad, 1990 (2) PLJR 298 . 16. The learned counsel on merits of the the case, submitted that in view of the express provision contained in Section 3(1) of the said Act, the opposite-party was only entitled to the amount of dower debt as also a reasonable amount of provisions and maintenance for the Iddat period and thus, according to the learned counsel, she having received the bulk of the amount, the proceeding under Section 125 Cr. P. C. should have been dropped. 17. In this connection, strong reliance was placed by the learned counsel upon a Full Bench Decision of the Andhra Pradesh High Court reported in Usman Khan Bahamani v. Fathimunnisa Begum and others, AIR 1990 AP 225 . 18. Mr. M. S. Anwar, the learned counsel appearing on behalf of the opposite-party, on the other hand, did not dispute the maintainability of this application, in view of the decisions of the Supreme Court afore-mentioned. 19. The learned counsel, however, submitted that no illegality hat been committed by the learned court below in directing the continuance of the proceeding under Section 125 Cr. P. C. According to the learned counsel, In view of the fact that the said application was filed on 11-11-1985, there cannot be any doubt that the opposite-party would be entitled to maintenance till 11-7-1988. 20. P. C. According to the learned counsel, In view of the fact that the said application was filed on 11-11-1985, there cannot be any doubt that the opposite-party would be entitled to maintenance till 11-7-1988. 20. The learned counsel further submitted that only after the wife has been divorced by her husband, the provisions of the said Act came into operation and in relation to the period after the divorce i. e. 11-7-1988, a proceeding in terms thereof will have to be initiated. 21. Sub-section 3 of Section 397 of the Code of Criminal Procedure reads as fallows: "If an application, under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." 22. Section 397 of Criminal Procedure Code provides for exercise of revisional power by the High Court or the Court of Sessions Judge by calling for records in order to enable it to consider the correctness, legality or propriety of any finding, sentence or order recorded or passed, and also as to the regularity of any proceedings of such inferior court. 23. Sub-section (3) of Section 397 of the Code of Criminal Procedure aforementioned however, debars entertainment of any further application by the High Court by the same person if he had earlier filed a revision application in the court of Sessions Judge. 24. Section 482 of the Code of Criminal Procedure, on the other hand, recognises the inherent power of this Court. 25. Section 482 of the Code of Criminal Procedure reads as follows "Saving of inherent powers of High Court" "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 26. From a bare perusal of the aforementioned provision thereof, it is evident that power under Section 482, C. P. C. is unlimited. 27. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 , the Supreme Court while considering the provisions of Section 397 (2) of the Cr. From a bare perusal of the aforementioned provision thereof, it is evident that power under Section 482, C. P. C. is unlimited. 27. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 , the Supreme Court while considering the provisions of Section 397 (2) of the Cr. P. C. held as follows : "In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1988 Code, the High Court will refuse to exercise its inherent power." 28. The aforementioned decision of the Supreme Court has been followed in Rajkapoor v. State (Delhi Administration) and others, AIR 1980 SC 258 . The Supreme Court pointed out that there is no absence of jurisdiction of the High Court but inherent power should not invade areas set apart for specific power under the same Code. For the purpose of considering as to whether the High Court should exercise its power under Section 482 of the Code despite the applicability of sub-section (2) and (3) of Section 397 thereof, the scheme of the Code in its entirely has to be taken into consideration. It must be borne in mind that although the revisional power of the High Court as also the Sessions Court is concurrent, the Code recognises the saving of inherent power of the High Court alone. In the hirearchy of Courts, the High Court is superior to that of the Session Judge. 29. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and othets, AIR 1983 SC 67 , the Apex Court again followed Madhu Limayes case (supra) and Raj Kapoors case (supra). 30. In the hirearchy of Courts, the High Court is superior to that of the Session Judge. 29. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and othets, AIR 1983 SC 67 , the Apex Court again followed Madhu Limayes case (supra) and Raj Kapoors case (supra). 30. In short, there is no total ban of the exercise of the inherent power by this Court where abuse of the process of the Court or other extraordinary situation requires exercise of the Courts jurisdiction. The limitation to the exercise of this power, however is self restraint. The object of the law is clear that interlocutory orders, pure and simple, or where a party has already approached the revision court, the same should not ordinarily be taken up to the High Court. However, some orders may require interference by this Court in exercise of inherent power, if glaring injustice stares on its face. 31. In view of the aforementioned authoritative pronouncements aforementioned, we are of the view that an application under Section 482 of the Code of Criminal Procedure can not be said to be not maintainable only because the petitioner had filed a revision application before the Sessions Judge. However, there can not be any doubt inherent power of this Court can only be exercised in exceptional circumstances and only for the ends of justice. We are, therefore, of the opinion that Ishwar Dayal Singhs case, 1980 BBCJ 436 , has correctly been decided. 32. The case at hand is one which required our interference in exercise of our inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 33. From a bare perusal of the impugned order passed by the learned court of revision below, it is evident that he has exceeded his jurisdiction and passed an order which is not substainable on the face of it as he held that the proceedings under Section 125 of the Code shall continue. 34. Even, Mr. M. S. Anwar, the learned counsel appearing on behalf of the opposite-party submitted that in view of the provision contained in the said Act as also various decisions of different High Courts, it can not be said that a proceeding under Section 125 Cr. P. C. may continue even after the period of divorce of his wife by a Muslim after coming into the force of the said Act. 35. P. C. may continue even after the period of divorce of his wife by a Muslim after coming into the force of the said Act. 35. The said Act was enacted for protecting the rights of Muslim Women who have been divorced by or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto. 36. Section 2 of the said Act contained the interpretation Clause which begins with "In this Act, unless the context otherwise required". 37. Divorced woman has been defined in Section (2) (a) of the said Act as meaning ; "Divorced woman" means a Muslim woman who was married according to Muslim law, and has been divorced by or has obtained divorce from, her husband in accordance with Muslim law." 38. Iddat period has been defined in Section 2 (b) of the said Act, as meaning : "Iddat period means, in the case of a divorced woman (i) three menstrual courses after the date of divorce, if she is subject to menstruation ; (ii) three lunar months after her divorce, if she is not subject to menstruation ; and (iii) if she is enceinte at the time of her divorce and the delivery of their child or the termination of her pregnancy, whichever is earlier." 39. Section 3 (1) of the said Act provides that Mahr or other properties of Muslim woman to be given to her at the time of divorce. Section 3 (i) (c) of the said Act reads as follows : "An amount equal to the sum of Mahr or Dower agreed to be paid to her at the time of her Marriage or at any time thereafter according to muslim Law ; Section 3 (i) (d) of this Act provides for return of property belonging to the divorced woman. 40. Sub-section (2) of Section 3 of the said Act provides that where a reasonable and fair provision and maintenance of the amount or Mahr or Dower due has not been made or paid or the properties referred to in Clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her, may on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, Mahr or Dower or the delivery of properties, as the case may be. 41. 41. As noticed hereinbefore, Section 3 provides for a non obstante clause. The effect of sucha non-obstante clause as is well-known is of wide amplitude. 42. Sub-section 3 of Section 3 of the said Act confers upon the Magistrate power to pass an order of payment of reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to : (a) the needs of the divorced woman, (b) the standard of life enjoyed by her during her marriage and (c) the means of her former husband or, as the case may be, for the payment of such Mahr or Dower or the delivery of such properties referred to in Clause (d) of sub-section (1) thereof. Such an application is required to be disposed of within one month from the date of filing thereof unless a Magistrate finds it impracticable to dispose of the same within the said period and in such event he will have to record his reasons in writing. 43. Section 4 of the said Act as provides for payment of maintenance after the period of Iddat. 43. Section 4 of the said Act as provides for payment of maintenance after the period of Iddat. Section 4 of the said Act reads as follows : "Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportion in which they would inherit her property and at such periods as he may specify in his order Provided that where such divorced woman has children the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance of her : Provided further that if any of the parent is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the magistrate may, on proof of such inability being furnished to him, order that the share of issue relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magitrate may think fit to order." 44. Section 7 of the said Act provides for transitional provisions, according to which when an application filed under Section 125 or under Section 127 of the Code of Criminal Procedure was pending before a Magistrate on the commencement of this Act, the same shall, notwithstanding any thing contained in that Code and subject to the provisons of Section 5 of the said Act, be disposed of by such Magistrate in accordance with the provisions of the said Act. 45. 45. From the provision aforementioned, it is absolutely clear that the opposite party shall be entitled to a maintenance from her husband for the period 11-11-1985 till 10-7-1988. However, so far as quantification of fair and reasonable provision and maintenance for the opposite party by the petitioner in terms of the provisions of the said Act is concerned, the same has to be disposed of keeping in view of the provisions of Section 3 of the said Act. 46. The Magistrate may however, if he finds the factors enumerated in Section 4 of the Act also present, he may pass an order in terms of that provision also. 47. Evidently,the learned Judicial Magistrate by reason of his impugned order had been considering the application filed by the petitioner on 4-2-1989 wherein he admitted his liabilities to pay the dower debt as also maintenance for the Iddat period. 48. Before the learned Judicial Magistrate, the parties had not adduced any evidence nor did the learned Judicial Magistrate determine the the amount payable by the petitioner to the opposite-party in terms of Section 3 of the said Act. 49. After the Magistrate applies his mind by considering the provisions of the Act and upon giving the parties an opportunity to adduce their respective evidences as also upon hearing their Counsel, he may pass a final order in respect of the claim of the maintenance both in relation to the period prior to the date of divorce as also after the date of divorce and the other sums, if any, which may be found payable by the petitioner to the opposite-party. 50. The parties, as indicated hereinbefore, are entitled to adduce evidence before the Magistrate in order to enable him to determine reasonable and fair provision and maintenance having regard to the needs of the opposite-party, the standard of living enjoyed by her during her marriage as also the means of the husband. 51. The very fact that the Parliament in its wisdom has laid down criterias on the basis whereof the fair and reasonable provision and maintenance can be quantified clearly go to show that the parties are entitled to bring on record materials in relation to the matters enumerated in sub-section (3) of Section 3 of the Act. 52. 51. The very fact that the Parliament in its wisdom has laid down criterias on the basis whereof the fair and reasonable provision and maintenance can be quantified clearly go to show that the parties are entitled to bring on record materials in relation to the matters enumerated in sub-section (3) of Section 3 of the Act. 52. Before the learned Judicial Magistrate, the opposite-parties may also have a claim with regard to the properties which might have been given to her before or at the time of the marriage etc., as provided for in Clause (d) of sub-section 3 of Section 3 of the Act. 53. Taking thus all facts and circumstances into consideration, we are of the opinion that in view of Section 7 of the Act, the learned court below have to continue the proceeding under the provision of the said Act for the purpose of determination of the quantum of maintenance for the period 11-11-1985 to 10-7-1988 as well as the amount which the opposite-party is entitled to from the petitioner in terms of Section 3 of the said Act. 54. For the views we have taken, it is not necessary to consider the submission made at the bar with regard to the interpretation of Section 3 of the said Act. 55. Before parting with the case, it may be mentioned that Mr. P.K. Prasad, the learned counsel appearing on behalf of the petitioner submitted that the order passed by the learned Judicial Magistrate quantifying the amount Rs. 8800 payable by the petitioner to the opposite-party has become final as the said order has not been challenged by her. 56. The order, dated 22-4-1989 passed by the learned Judicial Magistrate has to be considered as a whole and on the back drop of the application filed by the petitioner before him on 4-2-1989, by reason whereof he has not decided the matter finally as otherwise there would not have been any occasion for him to keep the proceeding alive. 57. By reason of the said order, therefore, the learned Judicial Magistrate had merely quantified an amount which the petitioner admitted himself to be liable to pay. We may hasten to add that purpose only he quantified the amount of maintenance @ Rs. 57. By reason of the said order, therefore, the learned Judicial Magistrate had merely quantified an amount which the petitioner admitted himself to be liable to pay. We may hasten to add that purpose only he quantified the amount of maintenance @ Rs. 400 per month which amount, in our opinion, he can vary or modify after adduction of evidence and upon taking into consideration the factors enumerated in sub-section (3) of Section 3 of the said Act. 58. This application is, therefore, allowed to the extent mentioned hereinbefore. 59. Having regard to the facts and circumstances of the case, the parties shall bear their own costs. 60. Both the parties agree that they would appear before the learnedJudicial Magistrate on 3rd December, 1990.