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Madhya Pradesh High Court · body

2000 DIGILAW 930 (MP)

Arif Rasid Khan v. Sabiha Bano

2000-08-30

S.C.PANDEY

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ORDER S.C. Pandey, J. 1. This is an application under Section 482 of the Code of Criminal Procedure whereby the applicant challenges the order dated 9th August, 2000, passed by 5th Additional Sessions Judge, Bilaspur in Criminal Revision No. 125/2000. 2. The applicant was aggrieved by the order dated 31-1-2000 passed by the Judicial Magistrate, First Class, Bilaspur in Misc. Criminal Case No. 119/99. Lear1ned Additional Sessions Judge has confirmed the order dated 31-1-2000. 3. It appears that non-applicant Sabiha Bano filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for brevity, hereinafter referred to as 'the Act of 1986') claiming inter alia the deferred Mahr amounting to Rs. 10,786/- and other claims. 4. In this application under Section 482 of the Code of Criminal Procedure, learned counsel for the applicant states that the applicant is aggrieved by the grant of aforesaid amount towards Mahr or Dower. The argument of the learned counsel for the applicant is that the divorce was granted at the instance of the non-applicant on 12-5-1995. This was a Khula Talaq and a Talaqnama was also written on that date when the witnesses were present. It was agreed between the parties as per the Muslim Law that the husband will get compensation in the shape of Mahr. In view of this matter, the non-applicant was not entitled to claim Mahr, under the provisions of the Act of 1986. It is apparent that the contention of the learned counsel has no force whatsoever. Talaqnama also docs not disclose that any such agreement was entered into. It is clear from the wordings of the Talaqnama that the wife had claimed Mahr as well as maintenance for her daughter, who was aged about 2 years. Even otherwise the parties could not enter into a contract contrary to Section 3 of the Act of 1986. Such an agreement will be hit by Section 23 of the Contract Act as it would defeat the Act of 1986 and is impliedly forbidden by law. 5. Learned counsel for the applicant however argued that the Muslim Personal Law would override the Law of Contract as well as the statutory law as framed under the Act of 1986. In the opinion of this Court there is no merit in this contention. 5. Learned counsel for the applicant however argued that the Muslim Personal Law would override the Law of Contract as well as the statutory law as framed under the Act of 1986. In the opinion of this Court there is no merit in this contention. Act of 1986 itself was passed for modifying the personal law of the Muslims and is an alternative mode of giving respite to a divorced muslim woman to whom the husband is not prepared to give relief under Section 125 of the Code of Criminal Procedure on the ground that it interferes with the personal law of the parties. A reading of Section 5 of the Act of 1986 would reveal that any muslim husband and wife can agree to abide by provisions of Sections 125 to 128 of the Code of Criminal Procedure. In view of this matter it is difficult to agree with the learned counsel for the applicant that the personal law will override even the Act of 1986. The law made by Parliament is supreme, as it is made under the Constitution and Parliament has full power to modify any personal law under our Constitution, if it so desires. For these reasons this Court would not interfere in an application under Section 482 of the Code of Criminal Procedure filed by the applicant. 6. The application is accordingly dismissed, so also M. (Cr.) P. No. 697/2000. 7. Misc. Criminal Case dismissed.