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High Court Of Calcutta
DIBYENDU BHUSAN DUTTA
SK.OMAR ALI - Appellant
Versus
ASPIA BIBI - Respondent
CRI. REV. 3068 Of 1996
Decided On : 11/25/1997
CRIMINAL REVISION - MAINTENANCE ALLOWANCE - MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - APPLICABILITY - RES JUDICATA - ISSUE ESTOPPEL - JURISDICTION - SECTION 125, 127 CR. P. C. - SECTION 3, 5, 7 OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 - INTERPRETATION.
Fact of the Case:
The husband, after his wife filed an application under Section 125 Cr. P. C. for maintenance allowance, filed an application under Sections 3(b) and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, alleging that he had divorced his wife on 16-3-88 and that the said divorce was intimated to the applicant by the Muslim Marriage Registrar of Kanksa. The Magistrate rejected the husband's application and allowed the wife's application for maintenance allowance. The husband challenged the Magistrate's order before the Sessions Judge, who dismissed the motion. The husband then filed a revision petition before the High Court, which was dismissed on the ground of delay and being a second revision petition barred under Section 397(3) of the Cr. P. C. The husband then filed a suit in the Civil Court for injunction restraining the wife from giving effect to the award of maintenance allowance and the order of the Sessions Judge. The injunction having been refused, the husband preferred an appeal. Thereafter, the husband filed an application under Section 127 of the Cr. P. C. before the Magistrate praying for setting aside the order of maintenance passed in Misc. Case No. 149 of 1985 on the ground that he had already divorced the wife on 16-3-88. The Magistrate dismissed the application. The husband challenged the Magistrate's order by filing a revision petition before the High Court.
Finding of the Court:
The High Court held that the Magistrate's order rejecting the husband's application under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Magistrate's order allowing the wife's application for maintenance allowance, and the Sessions Judge's order dismissing the husband's motion were not without jurisdiction and nullities. The High Court further held that the plea of divorce was not agitated during the trial of Misc. Case No. 149 of 1985, and the Magistrate's decision rejecting the husband's application under the provisions of the Act of 1986 had reached finality by reason of the order of the Sessions Judge dismissing the criminal motion No. 74 of 1990 as well as the order of the High Court dismissing the application under Section 5 of the Limitation Act for filing the criminal revision 725 of 1992. The High Court also held that the application under Section 127 Cr. P. C. was hit by the doctrine of issue estoppel as enunciated by the Apex Court in Piara Singh v. State of Punjab, AIR 1969 SC 961 : (1969 Cri LJ 1435 ).
Issues: 1. Whether the Magistrate's order rejecting the husband's application under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Magistrate's order allowing the wife's application for maintenance allowance, and the Sessions Judge's order dismissing the husband's motion were without jurisdiction and nullities? 2. Whether the plea of divorce was agitated during the trial of Misc. Case No. 149 of 1985? 3. Whether the Magistrate's decision rejecting the husband's application under the provisions of the Act of 1986 had reached finality? 4. Whether the application under Section 127 Cr. P. C. was hit by the doctrine of issue estoppel?
Ratio Decidendi: 1. The Magistrate's order rejecting the husband's application under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Magistrate's order allowing the wife's application for maintenance allowance, and the Sessions Judge's order dismissing the husband's motion were not without jurisdiction and nullities because the Magistrate had the jurisdiction to decide the issue of applicability of the Act of 1986 to the proceeding under Section 125 Cr. P. C. and the husband did not take any steps to have the Magistrate's order set aside. 2. The plea of divorce was not agitated during the trial of Misc. Case No. 149 of 1985 because the husband did not lead any evidence in support of his plea of divorce. 3. The Magistrate's decision rejecting the husband's application under the provisions of the Act of 1986 had reached finality by reason of the order of the Sessions Judge dismissing the criminal motion No. 74 of 1990 as well as the order of the High Court dismissing the application under Section 5 of the Limitation Act for filing the criminal revision 725 of 1992. 4. The application under Section 127 Cr. P. C. was hit by the doctrine of issue estoppel because the issue of divorce had already been decided by the Magistrate in his order dated 17-1-89 rejecting the husband's application under the Act of 1986.
Final Decision: The High Court dismissed the revision petition.
( 1 ) THE facts and circumstances leading to the instant revisional application may in substance be stated as follows.
( 2 ) THE wife opposite party No. 1 filed on 24-12-85 case under Section 125, Cr. P. C. being Misc. Case No. 149 of 1985 against the petitioner-husband claiming maintenance allowance for herself and her minor son on the ground of neglect and refusal on the part of the petitioner to maintain them. The opposite party No. 1 filed written objection on 26-8-86 admitting that the applicant was his legally married wife and that the minor son for whom the maintenance was claimed by the applicant was born out of the wedlock. During the pendency of that Misc. case, the petitioner filed on 21-12-88 an application under Section 3 (b) and Section 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 praying for rejection of the application that was filed under Section 125, Cr. P. C. alleging that he had divorced his wife on 16-3-88 and that the said divorce was intimated to the applicant by the Muslim Marriage Registrar of Kanksa and that in view of the said divorce and the pendency of the application under Section 125, Cr. P. C. on 19 May, 1986, the date on which the Muslim Women (Protection of Rights on Divorce) Act, 1986 had come into force, the said application under Section 125 is not maintainable. The applicant under Section 125, Cr. P. C. opposed the said application of the petitioner on filing a written objection praying for rejection of that application denying the alleged divorce and contending inter alia that the application under Section 125 was quite maintainable and the applicant was entitled to get maintenance allowance as prayed for. Upon hearing both parties, the learned Magistrate by order dated 17-1-89 rejected the husband's application under the Muslim Women (Protection of Rights on Divorce) Act, 1986 as he was of the view that it was not maintainable. The husband-petitioner did not challenge this order before higher Court and allowed the case under Section 125, Cr. P. C. to be proceeded with. Upon consideration of the evidence adduced by the parties during the trial of the Misc. Case, the learned Magistrate by his judgment dated 1-11-90 allowed the application under Section 125, Cr. P. C. directing the petitioner-husband to pay maintenance with effect from the date of filing of the case at the rate of Rs. 150/- per month for the wife herself and at the rate of Rs. 125/- per month for the minor son till his attainment of majority. Being aggrieved by this judgment, the husband preferred a motion being Criminal Motion No. 74 of 1990 before the Sessions Judge and the Sessions Judge by his judgment dated 27-3-91 dismissed the motion subject to the modification that the maintenance awarded by the Magistrate in favour of his son would be payable till 2-4-88. The wife put the award into execution in Misc. Execution Case No. 13 of 1991 on 17-8-91 for realisation of arrear maintenance allowance. On 13-3-92, the husband preferred a revision being Criminal Revision No. 725 of 1992 before the High Court challenging the judgment dated 1-11-90 passed by the learned Magistrate in the Misc. Case No. 149 of 1985 and the order dated 27-3-91 passed by the learned Sessions Judge in Criminal Motion No. 74 of 1990. The said revision case was filed 265 days after the expiry of the prescribed time limit and for condonation of the delay, an application under Section 5 of the Limitation Act was filed on behalf of the husband. N. N. Bhattacharyya, J. as His Lordship then was, was not satisfied with the explanation offered for the delay in filing the revisional application and accordingly, by order dated 6-9-93 dismissed the application under Section 5 of the Limitation Act. So far as the revisional application itself was concerned, His Lordship was of the view that the said application was a second revisional application and was barred under Section 397 (3) of the Cr. P. C. and as such, refu
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