Madhya Pradesh High Court
Shakila Bano vs Sheihk Naseem on 26 March, 1990
Equivalent citations: II(1991)DMC529
JUDGMENT S.D. Jha, J.
1. This second appeal by order dated 24-1-1990 was admitted for final hearing on the-following substantial question of law :-
"Whether the learned lower appellate Court has acted illegally and without jurisdiction in giving adjustment of the amount paid by the respondent in the maintenance case, before the concerning Magistrate"?
2. Shri A.J. Khan for the appellant and Shri M.A. Khan with Shri Z.A. Khan heard and record perused.
3. The trial Court in respect of Mahr (Dower) claimed by plaintiff-appellant a divorced Muslim wife, decreed the claim in full i.e. for Rs. 1001/- In appeal, however, by the defendant-respondent-husband the first appellate Court while maintaining the quantum of Mahr ordered adjustment of excess payment allegedly wrongly made to appellant wife by the Court in the proceedings under Section 125 Cr.P.C.
4. At the hearing Shri A.H. Khan, learned Counsel for the appellant contended that if the Criminal Court while exercising power under Section 125 Cr.P.C. had illegelly or erroneously ordered for excess payment the porper remedy for the defendant-husband would have been to challenge that order in a revision or in a proper suit. The first appellate Court was clearly in error in ordering adjustment of such excess payment more so when no counter claim in this respect was made in the suit nor Court fee paid on the same. He submitted that Section 127(4) Cr.P.C. relating to a different situation i.e. maintenance and dowry would not be applicable to this suit. He further submitted that the order of adjustment of Rs. 830/- out of Rs. 1001/- reducing this Mahr to Rs. 171/- was wholly illegal and without jurisdiction.
5. Shri M.A. Khan, learned Senior Advocate, for the respondent-husband strongly defended the order of the first appellate Court. He submitted that having regard to Muslim Women (Protection of Right on Divorce) Act, 1986, the direction and adjustment made by the first appellate Court was strictly in order and no interference in the same by this Court was called for.
6. Even though the calculation made as to maintenance having regard to period of 'Iddat' from the date of divorce made by the first appellate Court be correct, that would not justify the deduction in a suit for recovery of Mahr (Dower) the excess difference in maintenance ordered by the Criminal Court in exercise of powers under Section 125 Cr.P.C. the proper remedy would be not adjustment in the present suit but taking up the matter in revision proceedings before the Superior Court or by filing of a suit, if permitable under the law.
7. Shri. M.A. Khan, learned Counsel for the respondent, has failed to convince me how the order of adjustment passed by the first appellate Court of the excess difference of maintenance out of Mahr (dower) is legally justified.
8. As a result the appeal is allowed. The order of adjustment passed by the appellate Court is set aside and to that extent the judgment and decree modified. The judgment and decree passed by the trial Court is restored. There shall be no order as to costs of this appeal. Decree be drawn up accordingly.