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2009 DIGILAW 191 (CAL)

Shadab Bano v. State

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment : PARTHA SAKHA DATTA, J. (1) The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 raising the contention that after solemnization of her marriage on 9th of December, 2007 with the opposite party no. 2 she came to be subjected to torture on demands of dowry in the sum of Rs.10 lac and the money having not been paid she was taken to the house of her Rs.10,000/- per month. (2) The husband-opposite party no. 2 took the plea before the Magistrate of the petitioner being a talaqui wife, talaq having been pronounced on 29th of January, 2008 and communication was effected on the following day. Amounts on account of Iddat period and that on account of Meher have been remitted by money order on 6th of March, 2008. The Magistrate rejected the application for interim maintenance under Section 23 of the Act and against that order dated 3rd of October, 2008 the petitioner has come up with this application under Section 482 Cr.P.C. The ground of rejection of the prayer for interim maintenance under Section 23 of the Act as I find from the Magisterial order is that there has been a talaq in favour of the wife and the Protection of Women for Domestic Violence Act 2005 does not include within the ambit and scope a talaqui wife who cannot be said to have a relationship with the husband. (3) Mr. Ashis Sanyal, learned Senior Counsel appearing on behalf of the petitioner has very seriously criticized this observation of the learned Magistrate submitting, that the learned Magistrates order is confusing, contrary and inconsistent. Once the learned Magistrate observed that the opposite party no. 2 has divorced the petitioner and again he observes that the talaq is the subject matter of proof at the trial. No doubt, the order of the learned Magistrate is subject to criticism. I quote the relevant portion of the order as follows:- prescribed, but the words must be made in express terms and should not be ambiguous. Even it is not necessary to pronounce the term Talaq in presence of the wife or even addressed to her but talaq takes effect immediately after it is uttered, even before it is communicated to the wife. Even it is not necessary to pronounce the term Talaq in presence of the wife or even addressed to her but talaq takes effect immediately after it is uttered, even before it is communicated to the wife. Applying the said principle in the instant case I am of the opinion that the talaq as made by the opposite party is a valid Talaq. I further find a Talaqnama in favour of the opposite party from which it can be prime facie construed that between the petitioner and the opposite party the talaq has been duly made. Now whether such talaq has been duly made as per the Muslim Law or not is a matter to be considered at the time of trial only, upon appreciation of proper evidence. I, therefore, hold that the petitioner has been divorced by the opposite party." Mr. Sanyal has further argued that one Imam has given a certificate that talaq has been pronounced in presence of the witnesses under Muslim Personal Law, while another Imam has issued a certificate that no talaq can be said to have been validly pronounced. Argued it was that in the context of the certificates of the two Imams one in favour of the wife and other in favour of the husband it could not be understood how the learned Magistrate whose order is susceptible to two different interpretations can hold even conflictingly that the petitioner is not entitled to protection under the Act. (4) Since the argument was made at great length recording of the observation of the Magistrate had to be made. It is fair and enough to say that whether the petitioner is a matter of proof and not for this court to comment upon. (5) Question arose whether in view of Section 29 of the Act which provides for statutory appeal against the order of the Magistrate the inherent jurisdiction under Section 482 of the Cr.P.C. of the revisional jurisdiction of the High Court should be exercised to nullify an order, howsoever weak the order might be. Mr. Sanyal referred to the decision in BCPP Mazdoor Sangh and Anr. vs. N.T.P.C. and Ors., AIR 2008 SC 336 to argue that even when an alternative remedy is available the court in its jurisdiction under Section 482 Cr.P.C. can rectify an order which reflects an arbitrariness and non-application of judicial mind. Mr. Sanyal referred to the decision in BCPP Mazdoor Sangh and Anr. vs. N.T.P.C. and Ors., AIR 2008 SC 336 to argue that even when an alternative remedy is available the court in its jurisdiction under Section 482 Cr.P.C. can rectify an order which reflects an arbitrariness and non-application of judicial mind. When the mind of the learned Magistrate is vacillating and the Magistrate is not sure of whether the petitioner should be declared as a talaqui wife or not refusal of maintenance under the Act 2005 on the ground that the relationship ceased to subsist is ex facie untenable. Learned advocate for the opposite party no. 2 has argued that inherent jurisdiction under Section 482 Cr.P.C. is not at all warranted when the special statute provides for a statutory appeal under Section 29 of the Act. In support of the reasoning a decision in Satyanarayan Sharma vs. State of Rajasthan, (2001) 8 SC 607. (6) The State of West Bengal represented by Mr. S.S. Roy supported the argument of Mr. Syed Ataunnabi, learned advocate for the opposite party no. 2. (7) The decision cited by Mr. Sanyal was rendered in connection with a writ application under Article 226. In that decision it appears that maintainability of the writ petition was not objected to and it was only submitted by the learned the matter of terms and conditions of employment the appellants have appropriate remedy under the Industrial Law. It was held by the Honble Supreme Court that when the issue relates to employment of few hundreds of employees transferring them to a private organization from a public sector undertaking without their specific consent arbitrary and the law was well settled that alternative remedy is rule of discretion and not the rule of law. This decision does not help in the instant case. In the decision in Satya Narayan (supra) it was observed inter alia as follows:-"Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised notwithstanding any other provision contained in any other enactment. Thus if an enactment contains a specific bar then inherent jurisdiction cannot be exercised to get over that bar. In the decision in Satya Narayan (supra) it was observed inter alia as follows:-"Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised notwithstanding any other provision contained in any other enactment. Thus if an enactment contains a specific bar then inherent jurisdiction cannot be exercised to get over that bar. As has been pointed out in the cases of Madhu Limaye vs. State of Maharashtra, Janata Dal v. H.S. Chowdhary and Indra Sawhney v. Union of India the inherent jurisdiction cannot be resorted to if there was a specific provision or there is an express bar of law." (8) The same was the ratio in the judgment in the decision in Arun Sankar Shukla vs. State of Uttar Pradesh and Ors. reported in 1999 C.Cr.LR. (SC) 359. It was a case where revisional jurisdiction was exercised under Section 482 of the Cr.P.c. when remedy of appeal was provided in the statute. In State vs. Navjot Sandhu and Ors., 2003 SCC (Cri) 1545 the same principle has been expressed in very clear terms as follows:- "It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party." (9) This decision followed Satya Narayan Sharma (supra). The decisions in State vs. Navjot Sandhu (supra) and Arun Shankar Shukla vs State of U.P. (supra) were again reiterated in (2008) 1 SCC (Cri) 234. The decision in Amar Nath vs. State of Haryana., AIR 1977 SC 2185 again is one on this point. (10) Accordingly, application is not maintainable. The petitioner may, if so advised, approach the appropriate forum. (11) With the above observation, application is dismissed as being not maintainable.