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Madhya Pradesh High Court · body

2008 DIGILAW 1062 (MP)

Mohiuddin v. Azra Bano

2008-08-22

S.C.SINHA

body2008
JUDGMENT : S.C. Sinha , J.-- 1.Applicant/husband has filed this petition under Section 482 of Cr.P.C . against the order dated 9.6.06 passed by the XIAdditional Sessions Judge, Bhopal in Criminal Appeal No. 222/05 partiallyconfirming the order dated 25.7.205 passed by JMFC, Bhopal in MJC No. 17/05challenging the procedure adopted by Trial Court in an application underSection 3(1) of Muslim Women (Protection of Rights on Divorce) Act, 1986(hereinafter referred as “Act”) in view of Muslim Women (Protection of Rightson Divorce) Rules, 1986 (hereinafter referred as “Rules 1986”) which do notcontemplates acceptance of examination-in-chief of witnesses on affidavit inabsence of non-applicant/petitioner/husband. 2.Before JMFC, Bhopal an application under Section 3(1) of the “Act”, was filedby respondent/wife for recovery of Mehar amount,return of dowry articles, maintenance for “ Iddat ”period as well as sufficient money for future maintenance. During proceedingsbefore Trial Magistrate, petitioner and respondent have filed their evidence onaffidavit and none of the parties have raised any objection in view of Rule 4of the “Rules, 1986” and now applicant has filed this petition to set aside theimpugned orders and remand the case for fresh evidence to Trial Magistrate andpass the order in accordance with law. 3.Learned counsel for the applicant argued that Rule 4 of “Rules, 1986” providesspecific provision for recording evidence that all evidence in the proceedingsshall be taken in the presence of the respondent against whom an order for thepayment of maintenance is proposed to be made. Whereas in this case evidence ofrespondent/wife and other witnesses were taken on affidavit in absence ofpetition/husband and therefore, the whole proceeding of both the Courts beloware illegal, perverse and Court be directed to record the evidence as providedin Rule 4 of “Rules 1986” which reads as under: “Section 4. Evidence -- All evidence in the proceedingsunder the Act shall be taken in the presence of the respondent against whom anorder for the payment of provisions and maintenance. Evidence -- All evidence in the proceedingsunder the Act shall be taken in the presence of the respondent against whom anorder for the payment of provisions and maintenance. Mahr or power of the delivery of property is proposed to be made or, when hispersonal attendance is dispenses with, in the presenceof his pleader, and shall be recorded in the manner specified for summarytrials under the Code: Providedthat if the Magistrate is satisfied that the respondent is willfully avoidingservice or willfully neglecting to attend the Court Magistrate may proceed tohear and determine the case ex- parte and any order somade may be set aside for good cause shown on application made within sevendays from the date thereof subject to such terms as to payment of cost to theopposite party as the Magistrate may think just and proper.” 4.Thus, learned counsel for the applicant has argued that in this proceedingsexamination-in-chief of respondent/wife and her witnesses were recordedaffidavit hence it cannot be read, therefore, the order passed by Revisional Court as well as by the Magistrate be set asideand the proceedings be remanded back to Trial Magistrate to take fresh evidencein view of Rule 4 of “Rules 1986” and proceed in accordance with the law. 5.Learned counsel for the respondent Shri Dinesh Koushal argued that petitioner as well as respondent have submitted thereevidence on affidavit before Trial Court and now petitioner cannot take thisobjection in view of “principal of estoppel ”. LearnedTrial Court has not committed any illegality in the impugned order andpetitioner is only trying to delay the matter. 6.Both the learned counsel were heard. 7.Section 126 (2) of Cr.P.C ., 1973 is also regarding recording of evidence in respectof the proceedings under Section 125 of the Cr.P.C .,1973 about maintenance of wives, children and parents. “126.Procedure -- (1)............... (a ) .................... (b ) ................. (c ) ..................... 6.Both the learned counsel were heard. 7.Section 126 (2) of Cr.P.C ., 1973 is also regarding recording of evidence in respectof the proceedings under Section 125 of the Cr.P.C .,1973 about maintenance of wives, children and parents. “126.Procedure -- (1)............... (a ) .................... (b ) ................. (c ) ..................... (2)All evidence in such proceedings shall be taken in the presence of the personagainst whom an order for payment of maintenance is proposed to be made, or,when his personal attendance is dispensed with, in the presence of his pleader,and shall be recorded in the manner prescribed for summons-cases: Providedthat if the Magistrate is satisfied that the person against whom an order forpayment of maintenance is proposed to be made is willfully avoiding service, orwillfully neglecting to attend the Court, the Magistrate may proceed to hearand determine the case ex- parte and any order so mademay be set aside for good cause shown on an application made within threemonths from the date thereof subject to such terms including terms as topayment of costs to the opposite party as the Magistrate may think just andproper.” 8.Further rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules,1986 reproduced here as under: “Rule 4. All evidence in the proceedings under the Act shallbe taken in the presence of the respondent against whom an order for thepayment of provisions and maintenance. Mahr or powerof the delivery of property is proposed to be made or when his personalattendance is dispenses with, in the presence of his pleader, and shall berecorded in the manner specified for summary trials under the Code: Providedthat if the Magistrate is satisfied that the respondent is willfully avoidingservice or willfully neglecting to attend the Court Magistrate may proceed tohear and determine the case ex- parte and any order somade may be set aside for good cause shown on application made within sevendays from the date thereof subject to such terms as to payment of cost to theopposite party as the Magistrate may think just and proper.” 9.The language of 126 (2) of Cr.P.C ., 1973 and Rule 4 of “Rules 1986” is similar. 10.This Court in Rama Prasanna Tiwari vs. Smt . 10.This Court in Rama Prasanna Tiwari vs. Smt . Ashima & Anr ., 2005 (II) MPJR20 has already held that in proceeding under Section 125 of Cr.P.C .complaints evidence shall be taken in the presence of the person against whoman order of payment of maintenance is proposed to be made. In the same manner,in this proceedings evidence of respondent (wife/complainant) was not recordedin the presence of petitioner/husband. Trial Magistrate should have adopted theprocedure of Rule 4 of Act, 1986 regarding recording the evidence ofrespondent/wife in the Trial Court in presence of applicant. 11.There can be no estoppel against statute and no ruleof estoppel between the parties, cannot compel Courtto take any action contrary to express words of a statute. Thus the argument ofAdvocate of the respondent is without any merit. 12.Thus, in view of Rule 4 of “Rules, 1986” in this case evidence were notrecorded in the presence of petitioner/husband against whom order ofmaintenance was made. Hence, the order passed by Trial Court and Revisional Court , Bhopal is illegal and hereby set aside. 13.Learned JMFC, Bhopal is directed torecord fresh evidence in M.J.C. No. 17/2005, in presence of petitioner and passan order in accordance with the law. 14.Both the parties, shall remain present before the Court of J.M.F.C., Bhopal on16.9.2008 and Trial Court, Bhopal is directed to record evidence as providedunder Rule 4 of the Rules the Muslim Women (Protection of Rights and Divorce)Act, 1986. Further in view of Rule 5 of “Rule 1986”, the proceedings shall beheld as expeditiously as possible and particular, when the examination ofwitness has once begun, the same shall be continued from day to day until allthe witnesses in attendance have been examined unless the Court findsadjournment of the same beyond the following day to be necessary for reasons tobe recorded. Accordingly,this petition is allowed. No order as to costs.