Rashid vs Rafia

Harmohinder Kaur Sandhu, J.

Mst. Rafia filed a petition against her husband Rashid for grant of maintence under Section 125 Cr.P.C. wherein she made averments that she was married to Rashid on 711986 according to Mohammedan Law and out of this wedlock a son was born, who was 2 years 9 months old. Rashid had neglected her for the last 21/2 years and she was residing with her parents. She had no source of income while her husband who was running a barber''s shop in Ludhiana ''earned Rs. 2000/ per month. She also filed an application for grant of maintenance. The application was contested by Rashid on the ground that Rafia was able to maintain herself as she knew tailoring. He admitted his marriage with Rafia which according to him took place in the month of March, 1987 but contended that he had already divorced her in the month of November, 1987. At the time of divorce he paid her Mahr And delivered her all her belongings.

After hearing the counsel for the parties Shri Darshan Singh, Judicial Magistrate 1st Class, Kurukshetra vide his order dated 1841991 granted a sum of Rs. 150/ per month to Rafia respondent by way of interim maintenance from the date of application i.e. 29111990. Aggrieved by this order Rashid filed a revision petition which was dismissed by Shri P.C Gupta. Additional Sessions Judge, Kurukshetra vide his judgment dated 1781991. The present petition has been filed by Rashid under Section 482 of the Code of Criminal Procedure for quashing the proceedings under Section 125 Cr.P.C. Annexure P/1; application for grant of interim maintenance Annexure P/2; order dated 18 41991 passed by Judicial Magistrate 1st Class, Kurukshetra Annexure P/3 and judgment dated 1781991 rendered by Additional Sessions Judge, Kurukshetra Annexure P/4. They averments made in the petition are that the parties belong to Muslim community and after the commencement of Muslim Women''s (Protection on Divorce) Act, 1986, the rights of, divorced Muslim women to claim maintenance from her former husband were governed only by the provisions, of the Act of 1986 and the provisions of Code of Criminal Procedure were no longer applicable. The petitioner Had already divorced the respondent as per Muslim law much before the filing the petition for maintenance and the respondent was living with her parents as mentioned in the petition. She was a divorced wife and proceedings under Section 125 Cr. P.C : amounted to abuse of the process of Court.

I have heard the counsel the counsel for the parties.

The only contention of the learned counsel for the petitioner was that the respondent was divorced in November, 1987 and at that time she was given her Mahr and other belongings. She left the house'' of the petitioner and started living with her parents so she could not invoke the provisions of Section 125 Cr. P.C, after the commencement of the Act of 1986 mentioned above. This contention of the learned counsel however, is without any merit. A perusal of the petition Annexure P/1 shows that the respondent was married to the petitioner on 711986 at village Kharindwa and thereafter she resided with him as his wife. She gave birth to a son named Abdul Rehman. It was only 11/2 years prior to the filing of the petition that he was given beating and was turned out of the house the marriage of the respondent was performed in lieu of the marriage of The petitioner''s elder brother''s daughter with the brother of the petitioner and since the elder brother of the petitioner was not ready to send his daughter to her matrimonial house, some, matrimonial feud took place between the'' parties. It is correct that the petitioner took up a plea that he had divorced the respondent prior to the filing of the petition under Section 125 Cr.P.C. but the question whether the respondent was validly divorced'' is to be decided after evidence is led to that effect. The trial Court as well as the Court deciding the revision petition found that prima facie same there was no evidence to show that the respondent had been divorced in a legal manner. JUDGMENT regarding payment of interim maintenance was made after hearing the parties and finding that as for allegations the respondentwife had a case. The petitioner had already assailed the order granting interim maintenance before the Additional Sessions Judge, Kurukshetra and after his petition was dismissed he invoked the provisions of Section 482 Cr.P.C. just to circumvent the bar imposed by subsection 397 of the Code of Criminal Procedure which reads as under :

"If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the saint person shall be entertained by the other of them."

In the case of Rajan Kumar Manchanda v. The State of Karunataka, 1989(2) Recent Criminal Report 662 (SC) : 1990 (Supp) Supreme Court Cases 132 , it was observed :

"Where a revision petition is dismissed by the Sessions Court. a second revision would not lie to the High Court, merely by saying, that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397 3) of the Code could be labelled as one under section 482."

This authority is fully applicable to the facts of the present case. After the trial Court granted interim maintenance to the respondent th e petitioner filed a revision petition before the Additional Sessions Judge assailing that order and when the revision petition was dismissed that matter could not be gone into again by this Court nor the petitioner could be permitted to circumvent the bar imposed under section 397 (3) Cr.P.C. The petitioner cannot overcome the hindrance imposed by the statute by alleging that he was seeking intervention of this Court under Section 482 Cr.P.C. So in view of the above mentioned. authority also this petition is to fail.

For the reasons recorded above I find that the petition is not sustainable and dismiss the same.