JUDGMENT 1. - Heard. 1. Relevant facts for the purpose of disposal of this petition under Section 482 Cr.P.C. are that Smt. Sahnaz Bano, petitioner No. 1, was married to Mehmood Khan. The allegation was that she was being neglected and not maintained by her husband. She approached the Qazi of Vigyan Nagar, Kota and ultimately her marriage with Mehmood Khan was dissolved by the Central Court of Qazi situated at Patna in Bihar. She remarried. 2. Mehmood Khan who had already remarried lodged a complaint before the Judicial Magistrate, Rajsamand, Cognizance was taken by learned Magistrate for offence under Section 494 IPC against Sahnaz and various relevant sections against other petitioners by order dated 14th April, 1998. A revision was filed before learned Sessions Judge, Rajsamand which has been dismissed. 3. Learned counsel for the petitioners submitted that the petitioners cannot be prosecuted under Section 494 IPC because marriage was dissolved by Qazi on the ground that the husband had neglected on failed to provide Sahnaz maintenance for a period of more than two years, which is a legal ground for dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939. He submitted that the dissolution of marriage by Qazi was valid as Qazi used to do so during British Raj. He cited a judgment given in State of Rajasthan and others v. Mst. Shameem Akhtar, S.B. Civil Revision Petition No. 718/1997, decided on 27.11.1997 by Hon'ble Yadav, J. wherein he has observed that under the Mohammedan Law Marriage is a civil contract and the same can be broken without intervention of the court when husband pronounced triple 'Talak'. It has also been observed in the same judgment that so long under Article 44 of the Constitution uniform Civil Code is not enacted by Parliament for all citizens through out the territory of India, the personal law of Muslim community under Mohammedan Law shall continue to occupy the field of divorce amongst Muslim community. He also submitted that the Qazi was competent to dissolve marriage between the parties. He submitted that under Article 13 of the Constitution of India the laws which are inconsistent with or in derogation of the fundamental rights are void to the extent of such inconsistency and in this Article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having, in the territory of India. He submitted that under Article 13 of the Constitution of India the laws which are inconsistent with or in derogation of the fundamental rights are void to the extent of such inconsistency and in this Article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having, in the territory of India. He submitted that the usage and customs of different communities of India are exempted, such as dissolution of marriage by custom amongst Hindus is saved from the provisions of Hindu Marriage Act, 1955 as per provision of Section 29(2) of the Act. He submitted that the Parsi Marriage and Divorce Act, 1936 established Parsi matrimonial courts for Zorastrian's community and their awards are accorded validity by civil Courts. Though the Act has been overhauled in 1988 but the provision of matrimonial courts was left untouched. He also submitted that amongst Christians the ecclesiastical courts functioned during the British Raj and were replaced after independence by the Church committees, which are functioning uptil now. He submitted that these extra-judicial avenues are available with legal sanction to minority communities in India. He submitted that institution of Qazi is very old and Qazi used to decide such disputes. So dissolution of marriage between Sahnaz Bano and Mehmood has to be given due weightage as it is legal. 4. In substance his argument is that dissolution of marriage by Qazi is valid. I am of the view that it is not so, the Dissolution of Muslim Marriage Act, 1939 enumerates grounds in Section 2 on which a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage. The Dissolution of Muslim Marriage Act was passed when the ulema themselves recommended that the fedral Government enact the Act of 1939 providing for nine grounds of divorce to a muslim woman. It is an Act to consolidate and clarify the provision of Muslim Law relating to suits for dissolution of marriage by women under Muslim Law and to remove doubts as to the effect of renunciation of Islam by a married Muslim woman on her marriage tie. A muslim woman has to obtain a decree of dissolution under this Act in case she wants dissolution on anyone or more grounds enumerated in Section 2. A muslim woman has to obtain a decree of dissolution under this Act in case she wants dissolution on anyone or more grounds enumerated in Section 2. Dissolution of a muslim marriage can be done only by a competent civil court on the grounds enumerated in Section 2 of the Act and not by Qazi appointed by Muslim Personal Law Board. Even if a Qazi is appointed under the Qazi's Act 1880, his appointment shall not be deemed to confer any judicial or administrative powers on him. 5. I would not like to comment much upon the Qazi's court established by Muslim Personal Law Board because the Personal Law Board or Qazi is not before me, but will like to observe that Qazi's court established by Muslim Personal Law Board works as a reconciliation institution or an arbitrator which does extra judicial settlement of disputes. 6. In the end counsel submitted that Sahnaz Bano was bonafidely under the impression that Qazi was competent to dissolve her marriage. He also cited a judgment of Kerala High Court reported in 1958 KLT page 1042, Kochu Muhmmad Kunju Ismail v. Mohmmand Kadeeja Umma , in which it has been held that in a prosecution under Section 494 the accused's criminal intention in the act complained of against him is of greater importance and significance than the question of any civil right as between himself and the complainant. Criminal intention or guilty knowledge must be made out against the accused before the act complained of can be held to constitute a penal offence. The learned Additional Sessions Judge has himself taken care of this aspect as he has observed in his order that Sahnaz Bano's defence of dissolution of her marriage by Qazi was a question of fact and can be raised before the Magistrate. 7. In this view of the matter when petitioner Sahnaz Bano was under a bonafide belief that court of Qazi established by Muslim Personal Law Board was competent to grant her decree of dissolution of marriage, her bonafide belief shall be looked into by the trial court at the appropriate stage. But so far as order taking cognizance is concerned, the same cannot be quashed under Section 482 Cr.P.C. 8. Consequently, the petition is hereby dismissed at the admission stage.Petition Dismissed. *******