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2006 DIGILAW 709 (KAR)

JUBEDABI v. ABDUL JABBAR ABDUL KARIM MUL

2006-08-30

K.RAMANNA

body2006
ORDER This petition is filed by the petitioner/wife under Section 482 of Criminal Procedure Code, 1973, to quash the order of dismissal of the Criminal Revision No. 549 of 2001 passed by the Presiding Officer and the Additional Sessions Judge, Fast Track-IV, Belgaum. 2. Brief facts of the case are that the petitioner is the legally wedded wife of the respondent. Initially, she had filed an application under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, the Ace), with a prayer that she is entitled to recover Rs. 30,000/- from the respondent and also reasonable amount and fair provision and maintenance and also entitled for grant of marriage expenses and Dahej. So, after considering the materials placed on record, the Trial Court came to the conclusion in allowing the petition filed by the petiti9ger under Section 3(2) of the Act, directing the respondent to return the Mehar amount of Rs. 551/- and further it was directed to pay a reasonable and fair provision and maintenance of Rs. 15,000/- to the petitioner during the Iddat and Post-Iddat period and further Rs. 5,000/- was also awarded towards value of articles and other Dahej articles given to her in the marriage. 3. Assailing the said order passed by the Judicial Magistrate First Class-II Court, Belgaum, in Cri. Misc. Petition No. 247 of 1997, dated 20-9-2001, the petitioner challenged before the Additional Sessions Judge, Fast Track-IV, Belgaum under Section 397 of the Cr. P.C. in Cr. R.P. No. 502 of 2001. After hearing both parties, the said Cr. R.P. filed by the petitioner as well as the respondent were dismissed by the learned Sessions Judge. Therefore, she has come up with this petition under Section 482 of the Cr. P.C. on the ground that the Courts below have not properly appreciated the evidence placed on record. Exs. P. 4 and P. 5 recovery of articles worth Rs. 13,000/- though the petitioner has claimed a considerable compensation, a meager amount has been awarded, which is insufficient payment of maintenance and she is entitled to get the maintenance till her remarriage. Therefore, the impugned order passed by the Courts below are liable to be set aside or quashed. 4. Heard the arguments of the learned Counsel for the petitioner and the respondent and perused the records. 5. Therefore, the impugned order passed by the Courts below are liable to be set aside or quashed. 4. Heard the arguments of the learned Counsel for the petitioner and the respondent and perused the records. 5. During the course of the arguments, learned Counsel for the petitioner submitted that the petitioner is none other than the legally wedded wife of the respondent. Initially she filed a petition for grant of maintenance, which was rejected by the Trial Court. It is the case of the petitioner that initially she filed Cr. P. No. 81 of 1989 before the Judicial Magistrate First Class, Belgaum and another petition under Section 31 before the Family Court but the petition filed before the Family Court came to be dismissed with a direction to file the petition under Section 3(2) of the Act and in that petition she claimed Rs. 81,555/- but the Trial Court without appreciating the evidence placed on record, wrongly came to the conclusion in awarding a meager sum of Rs. 20,551/-. Therefore, the petitioner herein being the wife is entitled to claim reasonable maintenance and it is the duty of the respondent/husband to pay the same. But the Trial Court has not properly appreciated the materials placed on record and the learned Sessions Judge dismissed the revision petition. 6. In support his contention, learned Counsel for the petitioner relied upon a decision of the Supreme Court reported in case of Shamim Ara v State of Uttar Pradesh and Another1, wherein, the Apex Court has held thus: "Muslim Law - "Talaq" - Plea of previous divorce taken by husband in written statement in proceedings initiated by wife for maintenance - Cannot at all be treated as pronouncement of "Talaq" by husband on/wife on date of filing of written statement in Court followed by delivery of copy thereof to wife - Neither marriage between parties stands dissolved on date of filing of written statement - Nor does liability of husband to pay maintenance comes to an end on that day". 7. He has also relied upon another decision of the Delhi High Court reported in case of Mohd. 7. He has also relied upon another decision of the Delhi High Court reported in case of Mohd. Tahir v State and Others, wherein it has been held thus: "Maintenance - Grant of from the date of application - Validity - Application remaining pending for four years - No fault on part of applicant in causing delay in disposal - Grant of maintenance from date of application, not improper". 8. He has also relied upon another decision of this Court reported in case of K.M. Nagamallappa v B.J. Lalitha and Another, wherein it has been held thus: "Bar under Section 397(3) against the maintainability of second revision - Does not operate against maintainability of petition under Section 482". 9. Learned Counsel for the petitioner also relied upon another decision reported in case of Kailash Verma v Punjab State Civil Supplies Corporation and Another, wherein, it has been thus: "Section 482 of the Cr. P.C. has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. Criminal Procedure Code when there is serious miscarriage of justice and abuse Of the process of the Court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the Revisional Court". 10. It has been argued by the learned Counsel for the respondent that the learned Sessions Judge observed that wife is not entitled to get the marriage expenses if any made for performing the marriage. But the Trial Court is right in granting Rs. 15,000/- towards reasonable and fair provision of maintenance and also Rs. 5,000/- under the head 'value of the articles and other Dahej articles given to her in the marriage of the respondent and Rs. 551/- towards Mehar. Therefore, the learned Sessions Judge as well as the Trial Court are right in granting Rs. 20,551/- under three heads and rightly rejected for grant of amount under the head marriage expenses. It is argued that a total sum of Rs. 551/- towards Mehar. Therefore, the learned Sessions Judge as well as the Trial Court are right in granting Rs. 20,551/- under three heads and rightly rejected for grant of amount under the head marriage expenses. It is argued that a total sum of Rs. 15,000/- is granted towards maintenance for Iddat and Post-Iddat period. Therefore, it is argued that there abuse of process of law or miscarriage of justice in dismissing the revision petition filed by the petitioner to invoke the provisions of Section 482 ofthe Cr. P.C. and the revision petition is liable to be dismissed as not maintainable. 11. I have carefully 'examined the materials placed on record. The fact that marriage of the petitioner was performed with the respondent herein is not disputed. Since the respondent has given talaq, the petitioner/wife is entitled to maintenance for the Iddat period and Post-Iddat period and the Mehar and Dahej articles given by the parents of the petitioner at the time of marriage, since the respondent has not disputed that no conciliation proceedings has taken place before Talaq. Therefore, considering the fact that she was the legally wedded wife, she is entitled to claim maintenance from her husband under Section 3(2) of the Act. Therefore, she claimed maintenance of Rs. 80,555/-. But the Trial Court has awarded a meager sum of Rs. 15,000/- towards fair and reasonable maintenance. As could be seen from the decision cited above, the Muslim women under the Act is entitled to claim maintenance during Iddat period and Post-Iddat period apart from recovering Mehar as well as Dahej. In the instant case, the petitioner herein in all claimed Rs. 80,555/- which includes marriage expenses of Rs. 30,000/-, Dahej of Rs. 10,000/-, gold and other articles worth Rs. 10,000/-.But considering the fact that the respondent who is working in Forest Department and getting handful of salary is required to maintain the petitioner even if she is a divorcee or even the Talaq has been given and therefore, the claim made by her is reasonable and fair amount to an extent of Rs. 50,000/-. 12. The respondent herein has not taken any contention that after Talaq, petitioner herein has married to some other person and therefore, she is not entitled to maintenance. 50,000/-. 12. The respondent herein has not taken any contention that after Talaq, petitioner herein has married to some other person and therefore, she is not entitled to maintenance. In view of the facts and circumstances of the case and considering the submissions made by the learned Counsel appearing on both sides, even though the revision petition filed by the petitioner before the learned Sessions Judge challenging the order passed by the Judicial Magistrate First Class, the petitioner can file a petition under Section 482 of the Cr. P.C. on the ground that the said order passed by the learned Sessions miscarriage of justice or without justification. 13. Therefore, in view of the facts and circumstances of the case and considering the fact that the respondent is a Government servant and the petitioner herein is not remarried so far, she is entitled to get enhanced compensation of Rs. 25,000/- apart from the amount already granted by the Tribunal towards a reasonable and fair provision of maintenance. The rest of the amount awarded by the Trial Court towards the cost of the articles requires little enhancement to an extent of Rs. 5,000/- and the amount of Rs. 551/- towards Mehar is retained and in all, the respondent/husband is directed to pay a sum of Rs. 55,551/under the three heads. 14. Accordingly, the criminal petition is allowed in part by setting aside the order passed by the Presiding Officer and the Additional Sessions Judge, Fast Track Court-N, Belgaum, in dismissing the Cr. RP. No. 549 of 2001 filed by the petitioner and the order passed by the learned Judicial Magistrate First Class-II Court, Belgaum, in Cr. Misc. Petition No. 247 of 1988 is hereby modified by enhancing the amount of compensation from Rs. 20,551/- to Rs. 50,551/- awarded towards reasonable and fair provision for maintenance, Mehar and value of the articles.