Sirajur Raheman vs Nasim Banoo and Another

G.B. Pattnaik, J.—Husband is the petitioner and has invoked the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure against the order allowing amendment of the application, Opp. parties 1 and 2 who are the wife and the son of the petitioner, filed an application in the Court of Sub-divisional judicial Magistrate, cuttack under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 alleging therein that the petitioner has divorced his wife and is not maintaining the wife and the son. The petitioner, who was the opp party before the Magistrate, filed objection denying the allegation that he has divorced his wife and in course of the proceeding, led evidence to that effect. While the matter was being argued, the opp. pasties filed an application for amendment to insert a paragraph to the effect that, even if it is held that the opp. party has not, divorced his wife, then the petitioner is entitled to maintenance u/s 125 of the Code of Criminal Procedure as the opp. party is not maintaining the petitioner and has already contracted a second marriage. This application seeking an amendment having beer allowed, the husband his filed the present application.

Mr. Mohanty for the petitioner contends that Section 125 of the Code of Criminal Procedure would apply only if an application is filed under Sub-section (2) of Section 3 of the Muslim Women (Protection of Rights on Divorce Act and both parties exercise their option at the first hearing of application under Sub-section (2) of Section 3 to continue she preceding u/s 125 of the Code of Criminal Procedure. Since the parties did not exercise, their option to continue proceedings u/s 125 of the Code as provided in Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, the Magistrate had no jurisdiction to amend the application and the impugned order allowing amendment must be held to be without jurisdiction and accordingly must be quashed. Mr. Rahim appearing for the opp. parties on the other hand contends that power to amend being ancillary power of a purely procedural in nature the Magistrate can permit amendment of the application in exercise of that power and therefore the Magistrate has not committed any illegality in allowing the amendment. Mr. Rahim relies upon a decision of this Court in the case of Kumari Sabita Sahu v. Captains Khirod reported in 1990 (I) OLR 420. There is no dispute on the law laid down in the aforesaid case and a Magistrate normally would be within his power to amend the relief sought for even if the power has not been specifically provided in the Code itself. But the question remains for consideration is whether the proposed amendment can at all be taken into consideration for deciding the rights of the parties in the pending litigation. Admittedly application had been filed by the opp. parties under Sub-section 2 of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. That proceeding continued before the Magistrate and on the first hearing the parties did not exercise their option to continue he proceeding u/s 125 of the Code of Criminal Procedure. As provided in Section 5 of the Muslim women (Protection of Rights on Divorce) Act, the option not having been exercised on the first hearing to continue the proceeding under Sections 125 to 128 of the Code of Criminal Procedure, the question of application of Section 125 of the Code does not arise. The law on the subject has been fully discussed by me in the case of Riswana Begum Vs. A Mlv. Motiullah, . It has been held in the aforesaid case, so far as the divorce of Muslim women is concerned, Section 125 of the Code of Criminal Procedure would apply only, if both the parties exercise their option at the first hearing of application under Sub-section 2 of Section 3 of the Act as contemplated u/s 5 of the Act and not in any other manner. Consequently the Magistrate cannot exercise his jurisdiction under sec 125 of the Code of Criminal Procedure in case of divorced Muslim women, unless an application is filed u/s 3(2) of the Muslim women (Protection of Rights on Divorce) Act, 1986 and parties exercise their option as required u/s 5 of the said Act. In this view of the matter though the proceeding in the present case had been initiated under the provisions of Muslim women (Protection of Rights on Divorce) Act, the parties not having exercised their option within the ambit of Section 5 of the said Act, provisions of Section 125 of the Code will not apply. Consequently the impugned order allowing the amendment must be held to be one without jurisdiction as the Magistrate cannot in the facts and circumstances of the case entertain the applicability of Section 125 of the Code of Criminal Procedure. In the premises as aforesaid, I would quash the impugned order of the learned Magistrate and require him to continue hearing of the proceeding before him and dispose of the same in accordance with law.

The Criminal Revision is accordingly allowed.