2006 ALL MR (Cri) 1377
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
K.J. ROHEE, J.
Parzana Parveen Vs. Shakil Khan
Crl. Appl. No. 37113 of 2003
2nd September, 2005
Petitioner Counsel: M. K. PATHAN
Respondent Counsel: V. M. DESHPANDE
(A) Criminal P.C. (1973), S.125 - Maintenance - Entitlement - Divorced Muslim women - Maintenance - Entitled only for the period of iddat. (Para 8)
(B) Criminal P.C. (1973), S.482 - Inherent powers - Question of fact - Inherent powers of High Court are to be exercised not as appellate or revisional court - Question of fact not to be interfered with while exercising inherent powers - Concurrent finding by courts below - No interference in inherent powers. (Para 7)
1999 Cr.L.J. (Bom) 3846 [Para 8]
JUDGMENT :- By this application under Section 482 of the Code of Criminal Procedure the applicant seeks to quash and set aside the order of the Additional Sessions Judge, Amravati dated 16.7.2003 dismissing Criminal Revision No.144/1999 thereby affirming the Order passed by the Judicial Magistrate, First Class, Amravati dated 7.9.1999 in Misc.Criminal Case No.9/99 partly allowing the applicant's application for grant of maintenance allowance.
3. On 8.2.1999 the applicant moved an application for grant of maintenance under Section 125 of the Code of Criminal Procedure on the ground that soon after her marriage she was ill-treated by the non-applicant, dowry was demanded to her and she was driven out of the matrimonial house. The non-applicant opposed the application denying allegations of harassment to the applicant, demand of dowry and deserting her. According to the non-applicant the marriage between him and the applicant was dissolved by 'Khula' on proposal by the applicant on 24.9.1998 and execution of 'Khulanama' on 5.10.1998; that he had also sent 'Khulanama' to her on 31.3.1999. Thus the applicant is no more the wife of the non-applicant and is not entitled to claim maintenance. The application for grant of maintenance is not tenable and is liable to be dismissed.
4. The applicant examined herself in support of her claim whereas the non-applicant examined himself and DW 2 Sheikh Manwar. It appears that "Khulanama" (Exh.16) was also placed on record. After considering the oral and documentary evidence the learned Magistrate held that the non-applicant gave 'Talak' to the applicant and their relations as husband and wife came to an end. However the learned Magistrate granted maintenance at Rs.500/- per month to the applicant from the date of application i.e. 8.2.1999 till 8.5.1999. The revisional court upheld order of the learned Magistrate by holding that the fact of Khulanama is proved and that the learned Magistrate rightly granted maintenance only for the period of iddat. The revision was, therefore, rejected. These decision have been challenged by the applicant.
5. Shri. M. K. Pathan, the learned counsel for the applicant while assailing the order of both the courts below, submitted that the non-applicant has failed to prove dissolution of marriage between the applicant and the non-applicant. Shri. Pathan submitted that a divorce by Khula is a divorce with the consent, and at the instance of wife, in which she gives or agrees to give a consideration to husband for her release from the marriage tie. A khula divorce is effect by an offer from the wife compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Shri. Pathan further submitted that proposal and acceptance must be made at the same meeting in express words. Shri. Pathan submitted that the evidence of the non-applicant and DW 2 Shaikh Manwar is not adequate to establish the plea of the non-applicant about the dissolution of the marriage in the form of Khula. Shri Pathan also took me through the oral evidence adduced by parties in support of his submission.
6. Shri. V. M. Deshpande, the learned counsel for the non-applicant, on the other hand, justified the orders of both the courts below. Shri. Deshpande submitted that the present application is not tenable and is liable to be dismissed.
7. I have carefully consider the rival submission. It may be noted that the powers under Section 482 of the Code of Criminal Procedure are to be exercised sparingly and not as an appellate/revisional court. Question of fact cannot be interfered within exercise of the inherent jurisdiction. When it becomes a matter for evidence, normally it will not be appropriate to invoke the jurisdiction Section 482 if the of Criminal Procedure. The finding of fact arrived at by the two courts below, on appreciation of the evidence of the parties, will not be disturbed by re-appreciation of evidence by High Court. It may further be noted that the High Court should not act as a second revisional court under the garb exercise of inherent powers. While exercising its inherent powers, it must be conscious of the fact the the learned Sessions Judge has declined to exercise its revisional power in the matter.
8. In the instant case, both the courts below after appreciating the evidence, have held that the factum of divorce by Khula has been established. In view of this finding there is no reason for this court to invoke its inherent powers. It may be noted that the non-applicant has referred to Khula in his written statement and filing of such written statement contending such plea amounts to dissolution of marriage from the date on which such a statement is made (see 1999 Cr.L.J. (Bombay) 3846). Thus, the applicant is divorced Muslim Woman and after divorce she is entitled to maintenance under the provision of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and is not entitled to claim any maintenance under Section 125 of the Code of Criminal Procedure after expiry of the iddat period. It is apparent that a divorced Muslim Woman is entitled for the maintenance for the period of iddat only and in the present case maintenances allowance for such period has been granted by the courts below. Thus, I see no such to interfere with the judgement of the courts below. Hence I pass the following order: