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2005 DIGILAW 3154 (RAJ)

Usman v. State of Rajasthan

2005-11-29

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-Both these Criminal Revision Petition are directed against the order dated 26.08.2004 passed by Judicial Magistrate, Sardarsahar, District Churu (for short the trial Court hereinafter) in Criminal Application No. 18/2004 whereby the learned trial Court took cognizance of the offences under Sections 494 and 497 IPC against the petitioners in both the revisions petitions. Aggrieved by the order taking cognizance, the petitioners have filed the instant revisions. 2. I have heard the learned Counsel for the parties. Perused the order impugned as also relevant material on the basis of which the learned trial Court took cognizance of the offences noticed above. 3. Learned Counsel appearing for the petitioner heavily relied on a decision of the Sariyat Adalat i.e., Ajadayaleya Marakji Darulkaja Imaratey Sariya Biher, State Jharkhanda, Phoovari Karif , (Patna) in case No. 17798/1423 Hijri and contended that there was a resolution of “Talak” between petitioner Fatima in Criminial Revision No. 613/2004 and Non-petitioner No. 2, according to the procedure provided by Sariyat Adalat. Learned Counsel appearing for the contesting Non-petitioner No. 2 contended that dissolution of marriage is provided only under Dissolution of Marriage Act, 1939 (for short the Act of 1939 hereinafter) and he relied on a decision of this Court in Smt. Sanwar Bano vs. State & Anr., 1999 WLC (Raj) (UC) 679, wherein this Court held that the Act of 1939 enumerates grounds under Section 2 on which a woman married under Muslim Law shall be entitled to obtain a decree for dissolution of her marriage. The Act of 1939 was passed when the Ulema themselves recommended that the Federal Government enacted the Act of 1939 providing for 9 grounds of divorce to a Muslim woman. It is an Act consolidating and clarifying the provisions of Muslim law relating to status for dissolution of marriage for woman and removing doubts as to the effect of renunciation of Islam by a marriage of 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 one or more grounds enumerated under Section 2 of the Act of 1939. The dissolution can only be by a competent civil Court on the grounds enumerated in Section 2 of the Act of 1939 and not by Qazi appointed under Personal Law Board. The dissolution can only be by a competent civil Court on the grounds enumerated in Section 2 of the Act of 1939 and not by Qazi appointed under Personal Law Board. Even if a Quazi is appointed under the Quazi Act, 1880, his appointment shall not confer any judicial or administrative powers on him. 4. Learned Counsel further relied on a decision of this Court in Devendra Singh vs. State of Rajasthan, 2005 (3) RDD 162 (Raj) (DB) wherein this Court considering the case where while subsistence of marriage, the second marriage of petitioner was there. In that case, it was held that there are reasonable grounds to believe that they all were aware of first marriage, and, therefore, there is sufficient ground to presume that the petitioner therein committed offence under Sections 494, 494/109 IPC. 5. Keeping in view, the decision of this Court in Smt. Sanwar Bano (Supra), the controversy involved in this case stands concluded by the decision of this Court in Smt. Sanwar Bano (Supra), and in my view, the learned trial Court was justified in taking cognizance of the offence against the petitioners. 6. In the circumstances, I do not find error, irregularity or perversity in the order impugned. The revision petitions are accordingly dismissed. Interim order is vacated. Stay petitions also stands