Mohiuddin vs Smt. Azra Bano

S.C. Sinho, J.

Applicant/husband has filed this petition u/s 482 of Cr.P.C. against the order dated 9.6.06 passed by the XI Additional Sessions Judge, Bhopal in Criminal Appeal No. 222/05 partially conferming the order dated 25.7.2005 passed by JMFC, Bhopal in MJC No. 17/05 challenging the procedure adopted by trial Court in an application u/s 3 (1) of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred as "Act") in view of Muslim Women (Protection of Rights on Divorce) Rules, 1986 (hereinafter referred as "Rules 1986") which do not contemplates acceptance of examination-in-chief of witnesses on affidavit in absence of non-applicant/petitioner/husband.

Before JMFC, Bhopal an application u/s 3 (1) of the "Act", was filed by respondent/wife for recovery of Mehar amount, return of dowry articles, maintenance for "Iddat" period as well as sufficient money for future maintenance. During proceedings before trial magistrate, petitioner and respondent have filed their evidence on affidavit and none of the parties have raised any objection in view of Rule 4 of the "Rules, 1986" and now applicant has filed this petition to set aside the impugned orders and remand the case for fresh evidence to trial Magistrate and pass the order in accordance with law.

Learned counsel for the applicant argued that Rule 4 of "Rules, 1986" provides specific provision for recording evidence that all evidence in the proceedings shall be taken in the presence of the respondent against whom an order for the payment of maintenance is proposed to be made. Whereas in this case evidence of respondent/wife and other witnesses were taken on affidavit in absence of petitioner/husband and therefore, the whole proceeding of both the courts below are illegal, perverse and Court be directed to record the evidence as provided in Rule 4 of "Rules 1986" which reads as under:

Section - 4. Evidence - All evidence in the proceedings under the Act shall be taken in the presence of the respondent against whom an order for the payment of provisions and maintenance. Mahr or power of the delivery of property is proposed to be made or, when his personal attendance is dispenses with, in the presence of his pleader, and shall be recorded in the manner specified for summary trials under the Code:

Provided that if the Magistrate is satisfied that the respondent is willfully avoiding service or willfully neglecting to attend the Court Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on application made within seven days from the date thereof subject to such terms as to payment of cost to the opposite party as the Magistrate may think just and proper.

Thus, learned counsel for the applicant has argued that in this proceedings examination-in-chief of respondent/wife and her witnesses were recorded on affidavit hence it cannot be read, therefore, the order passed by revisional Court as well as by the Magistrate be set aside and the proceedings be remanded back to trial Magistrate to take fresh evidence in view of Rule 4 of "Rules 1986" and proceed in accordance with the law.

Learned counsel for the respondent Shri Dinesh Koushal argued that petitioner as well as respondent have submitted there evidence on affidavit before trial court and now petitioner cannot take this objection in view of "principal of estoppel". Learned trial Court has not committed any illegality in the impugned order and petitioner is only trying to delay the matter.

Both the learned counsel were heard.

Section 126 (2) of Cr.P.C., 1973 is also regarding recording of evidence in respect of the proceedings u/s 125 of the Cr.P.C., 1973 about maintenance of wives, children and parents.

Procedure - (1)..........

(a).........

(b)........

(c)......

(2) All evidence in such proceedings shall be taken in the presence of the person against 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:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

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 shall be taken in the presence of the respondent against whom an order for the payment of provisions and maintenance. Mahr or power of the delivery of property is proposed to be made or when his personal attendance is dispenses with, in the presence of his pleader, and shall be recorded in the manner specified for summary trials under the code:

Provided that if the Magistrate is satisfied that the respondent is willfully avoiding service or willfully neglecting to attend the Court Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on application made within seven days from the date thereof subject to such terms as to payment of cost to the opposite party as the Magistrate may think just and proper.

The language of 126 (2) of Cr.P.C., 1973 and Rule 4 of "Rules 1986" is similar.

This Court in Rama Prasanna Tiwari vs. Smt. Ashima & Anr., 2005 (II) MPJR 20 has already held that in proceedings u/s 125 of Cr.P.C. complaints evidence shall be taken in the presence of the person against whom an order of payment of maintenance is proposed to be made. In the same manner, in this proceeding evidence of respondent (wife/ complainant) was not recorded in the presence of petitioner/husband. Trial Magistrate should have adopted the procedure of Rule 4 of Act, 1986 regarding recording the evidence of respondent/wife in the trial Court in presence of applicant.

There can be no estoppel against statute and no rule of estoppel between the parties, cannot compel Court to take any action contrary to express words of a statute. Thus the argument of Advocate of the respondent is without any merit.

Thus, in view of Rule 4 of "Rules, 1986" in this case evidence were not recorded in the presence of petitioner/husband against whom order of maintenance was made. Hence, the order passed by trial Court and revisional Court, Bhopal is illegal and hereby set aside.

Learned JMFC, Bhopal is directed to record fresh evidence in M.J.C. No. 17/2005, in presence of petitioner and pass an order in accordance with the law.

Both the parties, shall remain present before the Court of J.M.F.C., Bhopal on 16.9.2008 and trial Court, Bhopal is directed to record evidence as provided under Rule 4 of the Rules the Muslim Women (Protection of Rights and Divorce) Act, 1986. Further in view of Rule 5 of "Rules 1986", the proceedings shall be held as expeditiously as possile and particular, when the examination of witness has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined unless the Court finds adjournment of the same beyond the following day to be necessary for reasons to be recorded.

Accordingly, this petition is allowed. No order as to costs.