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2013 DIGILAW 1491 (ALL)

PARVEJ KHAN v. STATE OF U. P.

2013-05-21

SURENDRA VIKRAM SINGH RATHORE

body2013
JUDGMENT : SURENDRA VIKRAM SINGH RATHORE, J. 1. Heard learned Counsel for the applicant, learned A.G.A. on behalf of the State and perused the material available on record. By means of this application u/s 482, Cr.P.C. the applicant has challenged the order dated 19.8.2004 passed in Case No. 351 of 2000 by learned Additional Chief Judicial Magistrate, Court No. 28, Lucknow, whereby the application of the applicant Parvez Khan, to treat the case as barred by time was rejected. 2. In brief the facts of this case are that the opposite party No. 3, Chanda Begum, was married with the applicant on 13.5.1990. Subsequently, demand of dowry was raised by the applicant and she was treated with cruelty. On 27.4.1992 she was badly beaten by the applicant regarding which the F.I.R. was lodged on 13.5.1992 and on 15.5.1997 she received a written divorce from her husband and since then she is living continuously with her parents. No maintenance amount was paid to her, therefore, she moved an application u/s 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986, for payment of Mehar and maintenance amount and for return of all her belongings. On this application no order was passed and the applicant after putting in his appearance moved an application u/s 468, Cr.P.C. and submitted that u/s 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, punishment provided, therefore, is only one year, hence, the application could not have been entertained by the Court after three years of the divorce as the same was barred by limitation. 3. Learned A.G.A. has supported the impugned order. 4. In this case as per the version of the application u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the wife received a written divorce on 15.5.1997 and this application was moved on 25.5.2000. During the course of arguments, learned Counsel for the applicant has fairly conceded that no time limit is prescribed for moving an application for the reliefs claimed by the wife in the instant case. 5. During the course of arguments, learned Counsel for the applicant has fairly conceded that no time limit is prescribed for moving an application for the reliefs claimed by the wife in the instant case. 5. His submission is that in view of the provisions of Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the noncompliance of the order is punishable with one year imprisonment, therefore, the period of limitation should be taken to be one year for filing the complaint in view of Section 468, Cr.P.C. 6. Perusal of the impugned order shows that the Trial Court considered and rejected the prayer on the ground that the provisions of Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, shall apply when the order is passed by the Magistrate and there is non-compliance of the said order. 7. Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, read as under: Section 3(4) The Muslim Women (Protection of Rights on Divorce) Act, 1986--If any person against whom an order has been made under Subsection (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or Mehar or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. 8. Perusal of the Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, shows that the view taken by the Magistrate was absolutely correct. In the facts of this case no order has been passed by the Magistrate on the application u/s 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, for payment of Mehar and for return of her other belongings. Since the order has not been passed, therefore, there arises no question for non-compliance of the said order. In the facts of this case no order has been passed by the Magistrate on the application u/s 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, for payment of Mehar and for return of her other belongings. Since the order has not been passed, therefore, there arises no question for non-compliance of the said order. Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, shall apply where the learned Magistrate has passed the order and there is non-compliance of the same and in view of this, the said application was rightly rejected by the Trial Court. In view of the above, there is no need to interfere with the matter, and the application u/s 482, Cr.P.C. being devoid of merit deserves to be dismissed and is accordingly dismissed. Office is directed to communicate this order to the Court concerned.