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2002 DIGILAW 294 (AP)

Syed Hyder Hussain v. State Of A. P.

2002-02-22

R.M.BAPAT

body2002
R. M. BAPAT, J. ( 1 ) THE petitioners herein are A-1 to A-5 in C. C. No. 210 of 1997. The said case is pending in the Court of the XXII Metropolitan Magistrate, Hyderabad. The alleged offences are under Section 498-A, I. P. C. and Sections 4 and 6 of the Dowry Prohibition Act. ( 2 ) ON the strength of the complaint filed by the de facto complainant in the Court of the XXII Metropolitan Magistrate, Hyderabad, the learned Magistrate forwarded the complaint to the Superintendent of Police, Women Protection Cell, CID, Hyderabad. It was finally investigated by the Inspector of Police, Women Police Station, Hyderabad and the charge-sheet was filed. ( 3 ) THE 1st petitioner happened to be the husband of de facto complainant. The 2nd petitioner is the father of 1st petitioner herein. The 3rd petitioner is the mother of 1st petitioner herein. The 4th petitioner is the brother of the 1st petitioner herein. ( 4 ) THE learned counsel Mr. E. V. Bhagiratha Rao appearing on behalf of the petitioner herein submitted at the Bar that there has been a little litigation between the de facto complainant and the petitioners herein. The first petitioner herein was prosecuted earlier in C. C. No. 210 of 1997 which was closed as a mistake of fact. The first petitioner herein divorced the de facto complainant by pronouncing talak on 9-4-1997 and the same was communicated to the de facto complainant. The Divorce Certificate was issued by the A. P. Wakf Board. The same was also communicated to the Station House Officer, Women Police Station, Hyderabad, which was received by them on 15-4-1997. The de facto complainant had knowledge that the 1st petitioner herein had pronounced talak and therefore the averments made in the charge-sheet on 28-4-1997 that the petitioners demanded Rupees Three lakhs by way of dowry is totally false. ( 5 ) IT was further submitted by the learned counsel for the petitioners herein that when the relations between the de facto complainant and the first petitioner herein was severed by pronouncing talak , then the provisions of Section 498-A, I. P. C. and the provisions of Sections 4 and 6 of the Dowry Prohibition Act are not attracted and therefore submitted it was a fit case for quashing the proceedings. ( 6 ) WHILE rebutting the aforesaid arguments, the learned counsel Mr. ( 6 ) WHILE rebutting the aforesaid arguments, the learned counsel Mr. Mirza Immamullah Baig submitted at the Bar that after the so-called divorce, the parties were residing under the same roof as husband and wife and therefore it must be held that they lived as husband and wife and therefore the provisions of Section 498-A, I. P. C. and the provisions of Sections 4 and 6 of the Dowry Prohibition Act are attracted. ( 7 ) THE learned counsel Mr. E. V. Bhagiratha Rao appearing for the petitioners herein submitted at the Bar that admittedly the parties are shias . The learned counsel further submitted that the divorce was pronounced before the witnesses and it was communicated to the wife. The legal formalities have been complied herewith. It was further brought to my notice by the learned counsel that Section 336 (5) of the Principles of Mohammadan Law revised by Mr. Justice M. Hidayatullah (as His Lordship then was) in which he stated "where the husband has repudiated his wife by three pronouncements, it is not lawful for him to marry her again until she had married another man and divorced him". The contention of the learned counsel Mr. E. V. Bhagiratha Rao is supported by a ruling reported in AIR 1932 PC 25. ( 8 ) THE learned counsel for the petitioners herein further brought to my notice that the parties are shias . Under Rule 64 (ii) of the Principles of Mohammadan Law, 2nd Edition, 1998 by Dr. Nishi Purohit, it was stated that a shia male is permanently prohibited to marry another woman whom he has divorced by triple talak . With these legal positions on record, the learned counsel Mr. E. V. Bhagiratha Rao submitted that even it is presumed for arguments sake that the de facto complainant and the first petitioner herein were staying together, they cannot be called as husband and wife. ( 9 ) BY considering the legal as well as the factual position, this Court is of the considered view that the parties are covered by shia Laws . The 1st petitioner herein had divorced his wife. Under the law the 1st petitioner herein prohibited in marrying the woman to whom he has divorced by pronouncing talak . ( 9 ) BY considering the legal as well as the factual position, this Court is of the considered view that the parties are covered by shia Laws . The 1st petitioner herein had divorced his wife. Under the law the 1st petitioner herein prohibited in marrying the woman to whom he has divorced by pronouncing talak . Under these circumstances, this Court is of the considered view that the provisions of Section 498-A, I. P. C. and the provisions of Sections 4 and 6 of the Dowry Prohibition Act are not applicable to the present set of facts. Therefore, C. C. No. 210 of 1997 pending on the file of the XXII Metropolitan Magistrate, Hyderabad is hereby quashed against all the petitioners herein. Hence, the Criminal Petition is allowed. Petition allowed.