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1997 DIGILAW 598 (ALL)

MUNNA BABU v. . SHANNO BEGUM

1997-05-21

A.N.GUPTA

body1997
A. N. GUPTA, J. ( 1 ) THE petitioner and opposite party are husband and wife respectively. Admittedly, they were married sometimes in the year 1985 under the Muslim Act. On 7-2-86, Opposite Party moved an application u/s. 3 (2) of Muslim Women Protection of Rights On Divorce, Act, 1986 (hereinafter referred to as the Act), for maintenance allowance, for Rs. 11,000. 00 as MEHAR and recovery of ornaments and properties and other ornaments given to her before, at the time and after marriage. The list of such items was given alongwith the application which includes ornaments, utensils, cycle, tape-recorder, sewing machine and clothes etc. It was alleged by her in her application that after the marriage she resided with the petitioner but the petitioner used to beat her on one pretext or the other and his family members used to say that very little dowry was given. The petitioner used to threaten opposite party that either she should bring a Scooter from her father or else he would turn her out of the house and would divorce her. It was further alleged in the application that the petitioner was not a man fit for marriage and therefore, used to harass the opposite party. It resulted into strained relations between the two. Compelled by these circumstances, opposite party intimated her father, other relations, and friends who came and tried to persuade the petitioner to behave properly. It was further alleged in the complaint that about 5 months back the petitioner came and left opposite party at her fathers house at Unnao by saying that he was going to Lucknow in connection with some business and he would take opposite party back on his return. When the petitioner did not turn up for several days, family members of O. P. No. 2 went to the petitioner and tried to presuade him to take opposite party back to his home. It was next alleged that on Id in the evening the petitioner came to Unnao and he demanded some money from the father of opposite party and his relation Sri Barkat Ali. When they expressed their inability to pay the amount the petitioner divorced opposite party in the presence of Sri Barkat Ali, Kalloo, Kayam Ali and Puttan and went away. Since then opposite party has been residing at Unnao with her Parents and the petitioner has not cared to maintain her. When they expressed their inability to pay the amount the petitioner divorced opposite party in the presence of Sri Barkat Ali, Kalloo, Kayam Ali and Puttan and went away. Since then opposite party has been residing at Unnao with her Parents and the petitioner has not cared to maintain her. ( 2 ) IN the written statement filed by the petitioner the allegations made by opposite party in her application were denied. It was inter alia pleaded that the petitioner had not divorced opposite party and the marriage between the two was subsisting. ( 3 ) OPPOSITE Party had examined herself in support of her claim and Barqat Ali. On the other hand, the petitioner had examined himself, Smt. Momina and Mahmood Ahmad. On an appraisal of evidence, learned Magistrate came to the conclusion that the petitioner had divorced the opposite party as alleged by her. Accordingly, on 26-5-87, he directed the petitioner to pay Rs. 11,000. 00 as MEHAR to the opposite party, maintenance allowance at the rate of Rs. 400. 00 per month during the period of Iddat and to return the goods mentioned in the list attached with the application except ornaments and clothes. Against the said order the petitioner preferred a revision before the learned Sessions Judge who dismissed the same on 19-1-88. Now, he has approached this Court by filing this petition u/s. 482 Cr. P. C. ( 4 ) THE only contention raised by learned counsel for the petitioner at the time of arguments is that once the petitioner had denied that he had divorced the opposite party, the learned Magistrate was not left with the jurisdiction to dispose of the application of the opposite party moved u/s. 3 (2) of the Act. It was argued that it is for a competent court to declare whether divorce had taken place or not and in collateral proceedings like this, the question whether divorce had taken place between the petitioner and opposite party, could not be decided. This argument and contention have no force because under Section 3 (2) and (3) of the Act the Magistrate is empowered to entertain and dispose of an application moved by a divorced wife for payment of MEHAR, maintenance allowance for Iddat period and for return of properties given before, at the time and after the marriage to her. This argument and contention have no force because under Section 3 (2) and (3) of the Act the Magistrate is empowered to entertain and dispose of an application moved by a divorced wife for payment of MEHAR, maintenance allowance for Iddat period and for return of properties given before, at the time and after the marriage to her. In view of this, the Magistrate cannot keep his hands off merely on the plea of the husband that no divorce had taken place. Since, it was incumbent on the learned Magistrate to decide this matter, he had to dispose of the application moved by such a wife finally. If a husband denies that the divorce had not taken place, the Magistrate has to decide the question whether opposite party was divorced wife or not. In case any party is aggrieved by any finding given by learned Magistrate in these proceedings on the question whether the divorce had taken place between the parties or not, he or she can file a regular suit. The finding recorded by learned Magistrate that the divorce had taken place between the parties is limited for the purposes of the said Act or for the purposes of disposing of the application moved by the wife under sub-sections (3) (2) of Section 3 of the Act. Further, if a court has been empowered to decide a matter, all questions which are incidental thereto or arise therefrom or are connected therewith and are ancillary thereto, have to be decided for disposing of the lis finally. It is a cardinal principle of interpretation that the authority which is empowered to discharge certain functions, it has all the incidental or ancillary powers also. It follows that while disposing of the main lis between the parties if some incidental or ancillary questions arise which are necessary to be decided for the final disposal of the said lis, the court is possessed of such powers to dispose of such incidental or ancillary matters. ( 5 ) IN view of the above, there is no force in this petition u/s. 482 Cr. P. C. which is hereby dismissed. Interim order passed earlier is vacated. Petition dismissed. .