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Mohammad Yameen Vs. Smt. Shamim Bano and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1984CriLJ1297
AppellantMohammad Yameen
RespondentSmt. Shamim Bano and anr.
Cases Referred and (ii) Guru Prasad v. Ram Dulari and State
Excerpt:
- - l,800/- ada hone ke bad phir agami rs. for the reasons best known to the applicant. on the other hand he has clearly mentioned in the first para that smt......this application. it is important to note that copy of the final order d/-1.5.1980 passed by the learned sessions judge, allowing the revision in favour of the applicant is neither attached with this application nor there is any prayer to quash it.2. brief facts of the case are that the opposite party no. 1 smt. shamim bano wife of the applicant filed an application under section 125, cr.p.c. against the applicant in the court of the judicial magistrate city, meerut on 21.4.1978, which was allowed on 16.8.1979 and smt. shamim bano was granted maintenance allowance at the rate of rs. 100/- per month since 21.4.1978. the applicant preferred a revision against the aforesaid order, which was allowed in his favour in terms of compromise between the parties (paper no. 8-ka) on the statements.....
Judgment:
ORDER

R.K. Shukla, J.

1. By this petition under Section 482, Cr.P.C. the applicant has prayed for quashing the orders D/-16.8.1979 (Annex. I) passed by Sri Bahoran Singh, Munsif-Magistrate, Meerut in Criminal Case No. 222 of 1978 under Section 125, Cr.P.C. and alleged order D/-23.4.1980 (Annex. 4) passed by the learned III Additional Sessions Judge, Meerut in Criminal Revision No. 292 of 1979. It is further prayed that recovery proceedings in case of Mohammad Yameen v. Smt Shamim Bano under Section 127, Cr.P.C. pending in the Court of the VI Additional Munsif Magistrate, Meerut be stayed during the pendency of this application. It is important to note that copy of the final order D/-1.5.1980 passed by the learned Sessions Judge, allowing the revision in favour of the applicant is neither attached with this application nor there is any prayer to quash it.

2. Brief facts of the case are that the opposite party No. 1 Smt. Shamim Bano wife of the applicant filed an application under Section 125, Cr.P.C. against the applicant in the court of the Judicial Magistrate City, Meerut on 21.4.1978, which was allowed on 16.8.1979 and Smt. Shamim Bano was granted maintenance allowance at the rate of Rs. 100/- per month since 21.4.1978. The applicant preferred a revision against the aforesaid order, which was allowed in his favour in terms of compromise between the parties (paper No. 8-Ka) on the statements made on their behalf by their respective counsel in presence of their clients, who had seen and signed on the order sheet of Sessions Judge D/-23.4.80 of Criminal Revision No. 292 of 1979 wherein the following order was passed:

23.4.80: Aj yah nigrani pesh hui. Pakshkar apne-apne vakilon sahit hajir aye. Vakla farikain ka bayan 8-Ka likha gaya. Adesh 1.5.80 ko sunaya jayaga.

Sd. Shamim Bano

Sd. Mohd. Yameen

Sd. Illegible

III Addl. Sessions Judge.

3. For the sake of convenience the terms of the compromise (paper No. 8-Ka) D/-23.4.1980 are also reproduced:

Crl. Rev. 292/79, Mohd. Yameen-Smt. Shamim Bano:

Vakla farikain ne bayan kiya ki Sri Mohd. Yameen, Smt. Shamim Baffo ki uski darkhast dhara 125 ki tithi 21.4.78 se 20.4.80 tak ka kul mutalba jo 75/- prati mah ke hisab se Rs. 1800/- hota hai, ko Rs. 75/- mahwar pichhle wa Rs. 75/- mahwar agami 21.4.80 ae yani Rs. 150/- mahwar ada karega. Pichhla Rs. l,800/- ada hone ke bad phir agami Rs. 75/- mahwar ke hisab se ada karta rahega jab tak dhara 127, Cr.P.C. koi adesh Nyayalay ka ho, pahli kisht 21.5.80 tak ada hogi aur agami isi prakar har mahine ki 21 tarikh tak kishten ada hua karengi.

Sd. Illegible Sd. Shamim Banofor applicant IdentifiedMohd. Yameen Sd. Illegible23.4.80 23.4.80Sd. Illegible

III Addl. Sessions Judge,

23.4.80.

4. On 1.5.1980 the following order was passed by the learned Sessions Judge:

Counsel for the parties gave the statement 8-Kha that the revision and the petition for maintenance may be decided in terms thereof.

Order:

The revision and the petition for maintenance are decided in terms of the compromise 8-Kha given by the learned Counsel for the parties on behalf of their respective clients. The revision stands allowed to that extent and the order passed is modified in terms of 8-Ka referred to above.

Sd. D. D. Srivastava

(D. D. Srivastava)

III Addl. Sessions Judge,

Meerut,

1.5.80.

5. On a perusal of the record, it is found that thereafter Smt. Shamim Bano, opposite party No. 1 moved an application D/-10.7.80 (paper No. 21-Ba) before the Magistrate, wherein she has stated that the learned Additional Sessions Judge, Meerut had modified the order to the extent that a sum of Rs. 150/- per month (Rs. 75/- as maintenance for current month and Rs. 75/- for arrears) would be paid monthly. The first instalment was to be paid on 21.5.80 and the second instalment by 21.6.80. Mohd. Yameen has not paid any money so far. She prayed that warrant to enforce the payment of maintenance by attachment and sale of his moveable properties might be issued under Section 125(3), Cr.P.C.

6. From the order sheet D/-22.10.80 it appears that applicant had already deposited Rs. 600/- with the police at police station Pilana, which was deposited in the Nazrat at Meerut. On the same day Smt. Shamim Bano moved an application for withdrawal of the amount of Rs. 600/-, which was paid to her on 23.10.80. Thereafter she again moved another application on 24.10.80 under Section 125, Cr.P.C. for recovery of maintenance allowance from. 23.8.80 to 22.10.80 totalling Rs. 300/-. On 25.10.80 warrant for recovery was issued.

7. On 21.10.80 Mohd. Yameen moved a new application (annex. 6 to this petition) under Section 127, Cr.P.C. stating therein that opposite party was an educated lady and she had remarried another man in the month of August and was living with him. It is also alleged therein that she was employed in a nursery school situated in Mohalla Faiyaz Ali from where she had sufficient income and she was able to maintain herself and under these circumstances, she was not entitled for maintenance allowance from the applicant, and therefore, she should be summoned and maintenance allowance should be stopped after drawing legal proceedings.

8. A stay application (Annex. 7) was also moved along with the said application which was rejected by the learned Magistrate vide order D/- 2.12.80. The applicant was asked to adduce evidence it support of his application under Section 127, Cr.P.C. The said order is Annex 8 to this petition. On 23.12.80 the learned Magistrate issued warrant of recovery against the applicant fixing 13.1.81.

9. Opposite party No. 1, Smt. Shamim Bano had denied all the allegations made by the applicant in his application and stated in para 7 of her counter-affidavit that allegations regarding re-marriage and employment were false and vague, as there was neither the date nor the name of the person with whom the alleged re-marriage had taken place. She has further stated in the said paragraph that if realization of the maintenance allowance was stayed she would suffer irreparable loss because she was not in a position to make both her ends meet. She has also stated that the applicant took five adjournments between 2.12.80 to 21.2.80 but could not produce any evidence in support of his application under Section 127, Cr.P.C.

10. The first point vehemently urged by the learned Counsel for the applicant is that the order of the learned Magistrate D/-16.9.79 is illegal as he did not record the evidence, and the order of the learned Sessions Judge, passed in terms of the compromise (8-Ka) is also not correct, because the counsel of the applicant had no authority on his behalf to compromise. I find it difficult to accept this contention the facts and circumstances of this case. It is quite clear from the order sheet D/-23.4.80 quoted above that the statements of the learned Counsel for the applicant and the opposite party No. 1 were recorded in Sessions Court in the form of paper No. 8Ka in the presence of the parties and the applicant Mohd. Yameen and his wife, Smt. Shamim Bano have signed it. Thereafter 1.5.80 was fixed for orders by the learned Sessions Judge. No objection was filed by applicant Mohd. Yameen against that compromise (8-Ka). On 1.5.80 the learned Sessions Judge passed the aforesaid order D/-1.5.80 which is not annexed with this petition under Section 482, Cr.P.C. for the reasons best known to the applicant.

11. It has been wrongly stated on oath in para 5 of this petition that the true copy of the order of the III Additional Sessions Judge was annexed as Annex. 4 to his affidavit. When this fact was pointed out by the learned Counsel for the opposite party No. 1 through an application, the record of the case was summoned and then it was found that Annex. 4 is actually the terms of the compromise (8-Ka) and the actual order passed by the learned Sessions Judge is D/-1.5.80 quoted above from the original record. Ordinarily this petition should have been rejected on the ground of this suppression alone but I do not think it proper to reject this petition on this ground stressed by the learned Counsel for the opposite party and proceed to decide this case on merit.

12. The object and scope of Chapter IX of the Cr. P.C as Sir James Fitz James Stiphen describes is 'a mode of preventing vagrancy or at least preventing its consequences.' Section 125, Cr.P.C. (new) has been enacted with the object of enabling discarded wives, helpless and deserted children and destitute parents to secure the much needed relief. Hence, it serves a special purpose. And the section enables a Magistrate to take a summary action for prevention of destitution. This section provides speedy remedy against starvation by way of summary procedure. It is not coextensive with the civil liability of a husband, father or son under his personal law to maintain his wife, children or parents. When substantial issues of civil law are raised between the parties their remedy lies in Civil Court.

13. In the present case an application was moved by opposite party No. 1, Smt. Shamim Bano wife of the applicant under Section 125, Cr.P.C. on 21.4.78. Objection was filed on behalf of applicant Mohd. Yameen on 13.9.78. The matter was lingering on and talks for compromise were going on between the parties. On 16.8.79 the applicant moved an application and the learned Magistrate passed the order wherein it is mentioned that it was admitted by opposite party that Smt. Shamim Bano was his legally wedded wife, hence she was entitled to maintenance and the learned Magistrate allowed Rs. 100/- per month from Mohd. Yameen since 21.4.78.

14. Thereafter the applicant filed a revision before 'the Sessions Judge which was allowed in his favour in terms of the compromise (8-Ka) between the parties on the statements flied through their counsel in the presence of their clients, who have seen the order and signed on the order sheet dt. 23.4.80. The case was fixed for 1.5.80 for order. No objection was filed by the applicant and the learned Sessions. Judge has allowed the revision in favour of, the applicant in terms of the Compromise reducing the amount of maintenance from Rs. 100/- granted by the Magistrate to Rs. 75/- per month. This compromise has been acted upon and the applicant had already made payment of Rs. 600/- to opposite party No. 1 in terms of the aforesaid compromise. Not only this, when the applicant made a new application (Annex. 6 to this petition) on 21.10.81 under Section 127, Cr.P.C. alleging that opposite party No. 1 had re-married and was earning her livelihood as a teacher, he made no grievance in that application that the order of the learned Sessions Judge was passed without any authority of the applicant. On the other hand he has clearly mentioned in the first para that Smt. Shamim Bano was married to him and due to differences between them, Smt. Shamim Bano filed an application under Section 125, Cr.P.C. for her maintenance. He has further stated therein'. Jiski appeal me prarthi par vipakshi Shamim Bano ke bharan-poshan ke liye Mananiya Nyayalay dwara Rs. 75/- masik kharcha dinank 1.5.80 ko tay kiya gaya tha.'

15. In view of the above facts, the aforesaid order D/-1.5.80 passed by the learned Sessions Judge in favour of the applicant in terms of the compromise between the parties has become final and acted upon. Neither that order D/-1.5.80 is annexed to this petition nor there is any prayer to quash it. Whatever irregularity was committed by the learned Magistrate, loses much of its importance after the order D/-1.5.80 was passed by the learned Sessions Judge in terms of the compromise (8-Ka) and acted upon. under these circumstances, there is no need to interfere with the orders passed by the Courts below under Section 482, Cr.P.C. which is entirely discretionary.

16. The second point urged by the learned Counsel for the applicant is. that the applicant has divorced Smt. Shamim Bano off 16.8.79 through Annex. 1 annexed to the counter-affidavit of opposite party No. 1 and she was not entitled to any maintenance. He stressed this point on the basis of personal law of Mohammedans also.

17. This argument has also no force. There is a basic departure from earlier Code in Section 125(1) Explanation (b) of the new Code, which runs as under:

'Wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

The scope of the above sub-clause has been now made quite clear by the Supreme Court in the case of Mst. Zohara Khatoon v. Mohd Ibrahim : [1981]2SCR910 in which it has been declared as under:

The view taken by the High Court (Allahabad) is erroneous and is based on a wrong interpretation of Clause (b) of the Explanation to Section 125(1) of the Code. Clause (b) of Explanation to Section 125(1) has made a distinct departure from the earlier Code in that it has widened the definition of wife. Under Clause (b) the wife continues to be a wife within the meaning of the provisions of the Code even though she has been divorced by her husband or has otherwise obtained a divorce and has not re-married.

18. It is not proved that Smt. Shamim Bano has re-married. There is no doubt that the applicant has moved an application under Section 127 (Annex. 4) before the Magistrate and new case has been registered, record of which has not been sent to this Court. The opposite party, Smt. Shamim Bano has strongly asserted through her counter-affidavit in this Court that she had neither re-married nor she was employed. The matter has to be decided by the Magistrate after recording evidence in the proceedings pending before him, which are stayed by stay order D/-6.2.81 obtained from this Court. In any case it is not proved that she has remarried or is employed.

19. Apart from the aforesaid decision of the Supreme Court regarding the scope of Explanation (b) to Section 125(1), Cr.P.C. (new), the personal law of Mohammedans is also not opposed to it. It is quite clear from Sura 241 of the 'HOLY QURAN' by A. Abdulla Yusuf Ali at page 96 (1st Edn., 1975 August, Vol. I & II) as under:

For divorced woman Maintenance (should be provided) On a reasonable (scale) This is a duty On the righteous.

(Vernacular matter is omitted.)

I 20. Section 125, Cr.P.C gives effect to the fundamental and natural duty of a man to maintain his wife, children and parents when they are unable to maintain themselves. It is applicable and enforceable whatever may be the personal law by which the persons concerned are governed. The right to be maintained conferred by this section is a statutory right, which the Legislature has created irrespective of the nationality or creed of the parties. To my limited vision this provision is also not opposed to the spirit of the Mohammedan Law. This provision comes within the reasonable scale as aforesaid in Sura 241 of the 'HOLY QURAN'. This is a duty on the righteous.

21. In view of the above discussions, I find no merit in this point also and, therefore, I reject it.

22. The last point urged by the learned Counsel for the applicant is that opposite party No. 1 Smt. Shamim Bano is not entitled to any maintenance, because she refuses to live with the applicant without sufficient reasons. He has cited two decisions of this Court in support of his contention. They are (i) Jagarnath Yadav v. Sjnt Panwa 1983 All Cri C 14 : 1983 All LJ 111 and (ii) Guru Prasad v. Ram Dulari and State 1979 Allahabad Criminal Judgments, P. 24.

23. I find no force in this argument also. On 16.8.1979 the applicant moved an application (Annex. 2 to the counter-affidavit of O.P. No. 1) before the Magistrate stating therein that he had divorced the opposite party No. 1 and he did not wish to keep her any longer. Once, the husband divorces the wife, she becomes entitled to maintenance allowance from her ex-husband. Her right to claim maintenance would come to an end only if she re-marries or lives in adultery or if she voluntarily surrenders her right of maintenance. In the instant case none of these eventualities has been proved. Only an application has been made under Section 127, Cr.P.C. which is pending decision before the Magistrate. All these allegations are denied by the opposite party No. 1 in her counter-affidavit and she has further stated therein that applicant took five adjournments between 2.12.1980 to 21.2.1981 and could not produce any evidence in support of his new application under Section 127, Cr.P.C. No specific reply has been given in the. Rejoinder affidavit Only this much has been stated in para 7 of the rejoinder affidavit of the applicant that the alleged re-marriage and her employment in some school was a matter of inquiry, which could be proved when inquiry would have been conducted by the trial Court.

24. Cases of Jagarnath Yadav and Guru Prasad (supra) relied on by the learned counsel for the applicant are distinguishable. Neither there was any order passed in those cases in terms of the compromise and acted upon, as has been done in this case, nor any application declaring divorce and unwillingness to keep wife was moved in those cases as has been done in this case. Under the circumstances of this case those two cases are of no help to the applicant. On divorce, the husband becomes 'NAMAHRAM' for the divorced wife and there is no question of her residing with him nor can she be asked to reside with him.

25. In view of the above discussions, this petition has no merit and deserves dismissal. It is, however, desirable that the application under Section 127, Cr.P.C. pending before the Magistrate should be decided on priority basis according to law.

26. In the result the petition fails and is dismissed. Stay order D/-21.2.1981 granted by this Court is vacated. The record of the lower Court should be sent back at once under sealed cover.


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