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2003 DIGILAW 185 (AP)

Shaik Mahaboob Bee v. State Of A. P.

2003-02-04

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner is the wife of the 2nd respondent. She filed M. C. No. 46/2000 under Section 125 Cr. P. C on the file of the Family Court, Hyderabad. Before the Family Court, the respondent filed a memo offering to pay maintenance at the rate of Rs. 750/- p. m. Taking into the same on record, the family Court through its order dated 7. 7. 2000 directed the 2nd respondent to pay the maintenance to the petitioner at the rate of Rs. 750/- p. m. with effect from July, 2000. When the 2nd respondent did not comply with the order of the Family Court, the petitioner filed M. P. No. 3/2001 under sub-section 3 of Section 125 of the Code of Criminal Procedure, on the file of Additional Metropolitan Sessions Judge for the trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court, Nampally, Hyderabad. After receipt of the notice, the 2nd respondent took the plea that he had divorced the petitioner and as such he is not under obligation to pay the maintenance. ( 2 ) THE executing Court, through its order dated 13. 3. 2002 has directed attachment of the salary of the 2nd respondent for realization of the arrears of maintenance. However, it had recorded a finding that the petitioner herein stood divorced by the 2nd respondent. The petitioner feels aggrieved by the order of the executing Court in M. P. 3/2001 in so far as the declaration that the petitioner stood divorced. Sri Y. V. Ravi Prasad, learned counsel for the petitioner submits that the scope of enquiry into the petition under Section 125 (3) of Cr. P. C. was very limited and the executing Court had exceeded its jurisdiction in recording a finding that the petitioner was divorced by the 2nd respondent. He challenged the findings of the executing Court both on law as well as on facts. The 2nd respondent was served with notice. He engaged Sri S. E. K. ( 3 ) MOINUDDIN and Ramana Advocates. When the matter was listed for hearing on 31. 1. 2003 there was no representation for 2nd respondent. Therefore, it was directed to be listed today to enable him to appear, but even today there was no representation. Heard learned Public Prosecutor for the 1st respondent. He engaged Sri S. E. K. ( 3 ) MOINUDDIN and Ramana Advocates. When the matter was listed for hearing on 31. 1. 2003 there was no representation for 2nd respondent. Therefore, it was directed to be listed today to enable him to appear, but even today there was no representation. Heard learned Public Prosecutor for the 1st respondent. It is his contention that the executing Court is competent to take into account the various facts placed before it. ( 4 ) THE petitioner herein filed M. C. No. 46/2000 before the Family Court, Hyderabad claiming maintenance. The 2nd respondent had come forward with an offer to pay the maintenance at the rate of Rs. 750/- p. m. The same was accepted and the Family Court passed an order dated 7. 7. 2000. Having prompted the Court to pass an order granting maintenance, he failed to pay the same as ordered. It was in that context that the petitioner had filed M. P. 3/2001 for execution of the order passed in M. C. No. 46/2000. The 2nd respondent took the plea that he has already divorced the petitioner and as such he is not under obligation to pay the maintenance. As long as the order in M. C. No. 46/2000 was in force, the 2nd respondent was under obligation to pay the maintenance. If, according to him, he was no longer under obligation to pay the maintenance, be it on the ground that he divorced the petitioner or otherwise, the only course open to him was to file an application under Section 127 Cr. p. C. before that very Court which awarded maintenance. He did not adopt that course of action. He has simply raised a plea before the executing Court. It is settled principle of law that the executing court cannot go beyond the scope of the order under execution. The court dealing with an application under sub-section 3 of Section 125 Cr. P. C. is an executing Court for all practical purposes. As a matter of fact, the executing Court in this case has treated the order in M. C. 46/2000 as enforceable and had directed the attachment of the salary of the petitioner. However, it has undertaken a discussion as to whether there existed any divorce between the petitioner and the 2nd respondent. As a matter of fact, the executing Court in this case has treated the order in M. C. 46/2000 as enforceable and had directed the attachment of the salary of the petitioner. However, it has undertaken a discussion as to whether there existed any divorce between the petitioner and the 2nd respondent. In para 21, after referring to the various contentions, the trial court observed as under:"the contents in Ex. R. 4 clearly go to show that the petitioner has received the Talaqnama. As the petitioner having received the Talaqnama kept quiet without questioning it in any legal proceedings, it has become final and she cannot now come and say before the Court that she has not received the Talaqnama and the Talaqnama is invalid in law. " ( 5 ) THE observation of the executing Court, which is extracted above was not only uncalled for having regard to the limited scope before it, but was also not within its power. The same cannot be sustained either on facts or in law. Therefore, the observation of the executing Court in M. P. 3/2001 to the effect that the 2nd respondent had divorced the petitioner shall stand set aside. The Crl. R. C. is accordingly allowed.