Allahabad High Court
Shabihul Hasan Jafari vs Zarin Fatma on 16 March, 2000
Equivalent citations: 2000CRILJ3051, I(2001)DMC1
Author: Ratnakar Dash
Bench: Ratnakar Dash
ORDER Ratnakar Dash, J.
1. A question of quite considerable importance that falls for determination is whether a maintenance proceeding arising under the Muslim Women (Protection of Rights of Divorce) Act, 1985 (for short 'the Act') having once been dismissed for default of the petitioner could be restored for adjudication on merit. In the present case, parties are Muslims and are governed by their personal law. Admittedly, opposite party No. 1 being a divorced woman approached the competent Court claiming maintenance for herself during the Iddat period as also for her minor child as provided in Section 3 of the Act. On the date of hearing she being found absent, the learned Magistrate dismissed the case for default. Thereupon, she moved an application to recall the order of dismissal and to decide the case on merit. Her prayer as allowed and consequently the order was recalled and the case was restored. Aggrieved thereby the petitioner filed a petition to recall the said order. The learned Court below, however, on consent of the parties dismissed the said petition as not pressed, inasmuch as, the parties agreed that the case may be disposed of on merit on the basis of the evidence to be adduced by them. Accordingly date was fixed for hearing. In the meanwhile the petitioner filed another petition to recall the order of restoration mainly on the ground that Act did not permit the Court to restore the case once, it was dismissed for default. By the impugned order, the Court rejected the petition and it is against that order the present case has been filed.
2. Learned Counsel for the petitioner strenuously contended that once the case was dismissed for default of opposite party No. 1 the learned Magistrate become functus officio and, therefore, had no jurisdiction to recall the order and to restore the case for fresh hearing. According to the Counsel, the said order being revisable, it was open to the opposite party No. 1 to approach the Revisional Authority to get the same annulled/set aside. In support of his submission he relied upon the decision of the Apex Court in the case of Major General A.S. Gauraya v. S.N. Thakur, AIR 1986 SC 1440.
On the other hand, learned Counsel for the opposite party No. 1 controverting the aforesaid submission urged that a maintenance proceeding under the Act being civil in nature, it was within the comeptence of the Magistrate to recall the order of dismissal passed on non-appearance of the opposite party No. 1 and to restore the case for effective adjudication on merits. In view of the aforesaid contentions made at the Bar, the questions that arise for determination are:
(1) Whether a petition for maintenance filed either under the Act or the Code of Criminal Procedure can be dismissed for default of the petitioner?
(2) Whether the' Magistrate having dismissed such petition on the petitioner's absence can recall the order of dismissal and restore the case?
3. Prior to the Act came into force, a married woman, whether divorced or not, on being refused of maintenance by her husband was entitled to approach the Magistrate 1st Class under Section 125 of the Code of Criminal Procedure, 1973 (for short "the Code") for grant of maintenance. However, separate provision was made in the Act to claim such relief by a divorced woman of the Muslim community for herself/as well as for her minor child. The Act contains in total seven sections of which Section 2 is the definition section. Section 3 relates to the entitlement of maintenance of a divorced woman as well as for her child besides 'mahr' or dower agreed to be paid to her at the time of marriage and the other properties given to her before or at the time of marriage. Section 4 envisages necessary orders for maintenance to be passed by the Magistrate. Section 5 makes provision enabling either party to make a declaration by affidavit to approach the Common Law Forum for resolution of the dispute. Section 6 relates to the rule-making power of the Central Government, and Section 7 is a transitory provision. In exercise of power conferred by Section 6 of the Act the Central Government has framed Rules namely, Muslim Women (Protection of Rights of Divorce) Rules, 1986 (for short "the Rules"), of which Rule 4 relevant for the purpose reads as under:
"4. Evidence.-AH evidence in the proceedings under the Act shall be taken in the presence of the respondent against whom an order for the payment of provision and maintenance, Mahr or dower or the delivery of property is proposed to be made or, when his personal attendance is dispensed with, in the presence of his Pleader, and shall be recorded in the manner specified for summary trials under the Code:
Provided that if the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to attend the Court, Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on application made within seven days from the date thereof subject to such terms as to payment of cost to the opposite party as the Magistrate may think just and proper."
4. The aforesaid Rule is part materia with Section 126 of the Code with a little variation. Proviso to the Rule envisages that the Magistate may hear and determine the case ex-parte on being satisfied that the opposite party is either wilfully avoiding service or neglecting to attend the Court. Such ex-parte order, however, can be set aside in the event the opposite party makes an application within seven days thereof showing good cause for non-appearance. A similar provision has also been made in Sub-section (2) of Section 126 of the Code for setting aside the ex-parte order on an application being filed within three months of passing of such order. It is, therefore, manifest that the Legislature has provided scope to the opposite party both under the Act and the Code to move the Court to have the ex-parte order set aside, but there is omission of a similar provision enabling the petitioner to seek for restoration of the case in the event it is dismissed for default. A married woman who is either deserted or divorced needs a roof over her head and food and clothing for sustenance. Therefore, under both the statutes provisions are made to secure her much needed relief in order to prevent starvation and vagrancy. To achieve such object within a reasonable time power has been conferred upon the Magistrate to adjudicate the claim by adopting summary procedure. Some times a woman for the reasons beyond her control fails to attend the Court resulting in dismissal of the case. In such a situation, taking advantage of absence of any provision for restoration, if it is held that the Court lacks jurisdiction to restore the case, then the very object and purpose of the legislature would be frustrated. Needless to say, an Act being the Will of the legislature the paramount rule of interpretation which overrides others is that the statute is to be expounded 'according to the intent of them that made it'. Therefore, if there is any lacuna in the statute, it obligates the Court to legislate judicially in order to give effect to the Will of the legislature. But, while doing so, the Court should bear in mind that it does not travel off its course. In this context it is apposite to refer to what Lord Denning an eminent Jurist, said in the case of Seaford Court Estates Ltd. v. Asher, 1949 (2) All ER155:
"When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament... and then he must supplement the written word so as to give "force and life to the intention of the legislature...' A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do so they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
5. Similar question as in the case on hand came for consideration before the Punjab and Haryana High Court in the case of Smt. Kamla Devi v. Mehma Singh, 1989 Cri. LJ 1866=II (1989) DMC185, where the Court in paragraph 7 of his judgment observed thus :
"There is no specific provision in Chapter IX of the Cr.P.C. dealing with application for grant of maintenance to wives, children and parents to dismiss such applications for non-appearance of the petitioner. Since such applications arc not to be equated with criminal complaints which necessarily are to be dismissed for non-appearance of the complainant in view of Section 256 of the Cr.P.C. it is only in the exercise of inherent power of the Court that for non-appearance of the petitioner, application under Section 125 of the Code is dismissed. If that is so there is no reason why there should not be inherent power with the Court to restore such applications dismissed in default on showing sufficient cause by the petitioner for his non-appearance."
6. To the same effect also is the view of the Calcutta High Court in the case of Sk. Alauddin @ Alai Khan v. Khadiza Bibi @ Mst. Khodeja Khatun, 1991 Crl. LJ 2035=1 (1992) DMC 268. In the said case, application under Section 125, Cr.P.C. was dismissed for default of the opposite party. On her filing a petition for restoration, the Magistrate allowed the same and restored the case to file. The petitioner challenged the correctness of the said order in the High Court by filing a revision. Following the decision of the Supreme Court in the case of Mst. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, the Court held that a proceeding under Section 125, Cr.P.C. being civil in nature, the Magistrate can invoke inherent power to recall his earlier order and finally dispose of the proceeding.
7. There is of course decision of the Andhra Pradesh High Court in the case of Abdul Waheed v. Hafeeza Begum, 1987 Cri. LJ 726, which to some extent supports the case of the petitioner. In the said case a similar situation arose where petition for maintenance of the opposite parties was dismissed for default. They moved an application to recall/set aside the said order which was also dismissed. Feeling aggrieved they preferred revision and the learned Sessions Judge being of opinion that the order of dismissal was illegal set aside the same. The revisional order came to be challenged by the petitioner in the High Court. The Court while agreeing with the view of the learned Sessions Judge that the Magistrate had no power to dismiss the case observed:
"The Trial Court is not empowered to pass an order dismissing the application for default and much less the application for setting aside the default order cannot be entertained. It is obvious that the Trial Court has no power to pass a default order. The revision has been filed before the Sessions Court against the order declining to set aside the ex-parte order and restore the same on file. The Magistrate has no power to pass default order or set aside such ex-parte order and the Sessions Court invoking the revisional jurisdiction cannot clothe such power with the Magistrate in the absence of provision to that effect in the Cr.P.C. Though the revision petition before the Sessions Court is confined to the order declining to set aside the ex-parte order, the Sessions Court under the powers vested in revisional jurisdiction is justified in setting aside the original order dismissing the application for default. The Sessions Court has ample power under revisional jurisdiction to revise any illegal order passed by the subordinate Court and need not be fettered by the subject-matter in the revisional petition."
8. With respect I do not agree with the aforesaid proposition of law. It will be wrong to say that since there is no express provision in the Code, the Magistrate does not have power to dismiss the proceeding for default of the petitioner. Supposing that the petitioner being no more interested does not appear in the case, then should the Magistrate helplessly adjourn the case or should he issue any process for compelling the petitioner's appearance or should he proceed with hearing and record the evidence of the opposite party and finally dismiss the case on the basis of the evidence so collected ? If these questions are answered in affirmative, in my opinion, it will be an absurd proposition of law. The petitioner having lost interest in the case if does not turn up on the date of hearing, it will be a futile exercise to proceed with the hearing by asking the opposite party to lead evidence in support of his defence and then pass the order dismissing the case. The matter may be judged from another angle. Assuming that the Trial Court has no power to dismiss the case on petitioner's default, as observed by the Hon'ble Judge because of absence of an express provision in the Code then in that case the order of dismissal being without jurisdiction is non-est in the eye of law and, therefore, the Magistrate would be competent to recall the said order and to restore the case to its original position. To undo the wrong committed by the Magistrate, the petitioner should not be forced to approach the revisional Court.
9. Next I will deal with the decision of Maj. Gen. A.S. Gauraya (supra), relied upon by the learned Counsel for the petitioner. In that case the question before the Apex Court was whether the Magistrate could restore the complaint to his file by revoking his earlier order dismising it. Having made an in-depth study on the question involved. Their Lordships answered the question in negative. There is no doubt about the aforesaid proposition of law enunciated by the Apex Court. The said decision is quite distinguishable. A petition for maintenance cannot be termed as complaint. The word 'complaint' defined in Section 2(d) of the Code means an allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person whether known or unknown has committed an offence, but does not include a police report. Refusal to maintain wife, children and parents by a person is not an offence under the Indian Penal Code or under any statute. In that view of the matter, the ratio of the aforesaid decision has no application to the case in hand.
10. In view of discussion made above, I am of the opinion that due to petitioner's absence a maintenance proceeding either under the Act or the Code can be dismissed and subsequently on the prayer being made, the said order of dismissal can be recalled or set aside and the case can be restored to its original position for effective adjudication on merits. Resultantly, the present miscellaneous case fails and is dismissed.