Mohammed Shafi vs Nasrin Bano on 4 May, 2001

    Mohammed Shafi vs Nasrin Bano on 4/5/2001

ORDER

   B.J. Shethna, J.

   1. An application was filed by the respondent-wife against the petitioner-
husband under Section 3(1)(2) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 (for short 'the Act') before the Court of Additional Civil
Judge (Junior Division) and Judicial Magistrate First Class No. 2, Bhilwara
wherein it was stated that she got married on 10-11-90 as per the customs
prevailing in the Muslims. At the time of marriage, mehar amount of R Section
21,000/-was fixed. However, there were no cordial relations with him, therefore,
she had to file an application seeking divorce from her husband. During the
pendency of that application for divorce, her husband gave Talaq (Divorce) on
1-6-95 and in talaqnama, it was deliberately mentioned by her husband that his
wife proposed "khulla" and in lieu thereof, she has let go "mehar amount"
whereas she had never asked for "khulla" nor she has allowed to let go the mehar
amount. Her husband was Junior Fitter Attendant and drawing salary of R Section
4,000/- per month. His brother and father were doing business separately,
therefore, Rs. 1,000/- be paid for Iddat period along with the mehar amount of R
Section 21,000/- and other belongings be ordered to be paid to her along with
costs and interest. The said application was opposed by her husband by stating
that his wife had asked for khulla and let go mehar amount, therefore, she was
not entitled for the same.

   2. After considering the evidence led by the respective parties before him,
the learned Magistrate accepted the application filed by the wife and ordered
the husband - present petitioner to pay mehar amount of R Section 21,000/- and
to pay R Section 333/- per month during the Iddat period and also to return the
belongings, failing which he will have to pay Rs. 50,000/- each for jewellery
and other belongings in all Rs. 1 lac.

   3. The petitioner challenged the aforesaid impugned order dated 6-4-99 passed
by the Magistrate by way of revision No. 21/ 99 before the Sessions Court which
was partly accepted by the learned Additional Sessions Judge No. 2, Bhilwara by
his Judgment and order dated 22-1-2001 whereby he set aside the order passed by
the Magistrate ordering the husband to pay Rs. 50,000/-each for not returning
jewellery and her belongings. However, rest of the order regarding payment of
mehar amount of R Section 21,000/- with R Section 333/- per month during the
Iddat period and the order regarding returning jewellery and other belongings
given at the time of marriage in dowry was maintained. This has been challenged
by the petitioner-husband in this misc. petition before this Court under Section
482, Cr.P.C.

   4. Learned counsel Mr. Agha for the petitioner raised only one submission
regarding payment of mehar amount of R Section 21,000/- on the ground that once
khulla is proposed and divorce is given by the husband on that terms offered by
his wife and the mehar amount was already let go by his wife, then she cannot
claim the said amount of mehar before the Court. He, therefore, submitted that
both the Courts below have committed grave error in awarding mehar amount in
spite of the fact that khulla was proposed by his wife and she has let go the
mehar amount as specifically mentioned in talaqnama. He also submitted that both
the Courts have committed an error in awarding mehar amount on the wrong
assumption that even if his wife has proposed khulla and let go the mehar amount
as per talaqnama, then also under Section 3 of the Act, she is entitled for the
mehar amount.

   5. Before appreciating the aforesaid contention of learned counsel Mr. Agha
on merits, I must state that there is a bar of Sectionnd revision under Section
399(3), Cr.P.C, therefore, with a view to circumvent the same, this petition is
filed under Section 482, Cr.P.C. Ordinarily, this Court would not entertain such
petition unless and until it is pointed out that by passing the impugned orders,
the Courts below have committed grave error which has resulted into miscarriage
of justice. Having carefully gone through the orders passed by the Courts below,
I am fully convinced that this is not a case where it can be said that while
passing the impugned orders, the Courts below have committed gross error
resulting in miscarriage of justice, therefore, on this ground alone, this
petition is required to be dismissed.

   6. Even on merits, the aforesaid submission made by learned counsel Mr. Agha
has no substance. It is true that both the Courts below have held that in view
of Section 3 of the Act, she would be entitled for mehar amount even if the wife
had proposed khulla and let got the mehar amount. However, I am not inclined to
give much importance to this finding because on facts of this case, after
appreciating the evidence, both the Courts below concurrently found against the
petitioner that the respondent-wife has never proposed khulla and has never let
go the mehar amount. In that view of the matter, it cannot be said that the
Courts below have committed any error in awarding mehar amount of R Section
21,000/-.

   7. Before parting, I must state that the learned Additional Sessions Judge in
revision has modified the order passed by the learned Magistrate of awarding Rs.
50,000/-each for jewellery as well as other belongings of the wife which she had
brought in dowry at the time of marriage, by maintaining the order of the
learned Magistrate to return the said jewellery and other belonging to wife. The
said order is not challenged at present by the respondent-wife, therefore, I do
not want to express any opinion about it. But, prima facie I am of the opinion
that when the order of the trial Court regarding return of jewellery and other
belongings to wife was found to be legal and sustained by the learned Additional
Sessions Judge in revision, then there was no reason to modify the order passed
by the learned Magistrate to pay Rs. 50,000/- each for jewellery and other
belongings.

   8. In view of the above discussion, this petition fails and is dismissed.

   9. Stay petition is also dismissed.