Uttarakhand High Court
Smt. Nishat Iqbal vs Unknown on 11 October, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Office Notes, reports,
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Date COURT'S OR JUDGES'S ORDERS
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C482 No. 1826 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Dharmendra Barthwal, Advocate for the applicant.
Mr. T.C. Agarwal, A.G.A. for the State.
A Criminal Misc. Case No. 1133 of 2014, Smt. Nishat Iqbal Vs. Mohd. Abu Bakar Siddiqui and others was decided by the court of 5th Additional Chief Judicial Magistrate, Dehradun by the judgment of 22.02.2020.
As a consequence of the judgment rendered thereto, certain directives with regards to the payment for the maintenance to the applicant was settled alongwith a permanent alimony. The relevant paragraph of the judgment is extracted hereunder:-
प्रत्यथी सं ख्या 1. मा० अबुबकर को आदे शित शकया जाता है शक भरण पोषण के रूप में व्यशथता श्रीमती शनिान्त इकबाल को इस शनणण य / आदे ि की शतशथ से प्रशतमाह 20,000/- रुपये (बीस हजार रुपये ), रुपये प्रशतमाह भरण पोषण, अदा करना सु शनशित करे । उक्त धनराशि प्रत्यथी सं ख्या 1. प्राशथण नी / व्यशथता को प्रशतमाह की 10 तारीख तक अदा करे गा। 3.
प्रत्यथी सं ख्या 1. मौ0 अबुबकर को यह भी आदे शित शकया जाता है शक वह व्यशथता को घरे लू शहं सा के कायों द्वारा. जो मानशसक व भावनात्मक सं कट व्यशथता को हुआ है . की प्रशतपूशतण के रूप में 5,00,000/-रुपये (पां च लाख रुपये ), रुपये का भु गतान एक माह के अन्दर व्यशथता को अदा करना सु शनशित करे ।
Since, the conditions contained therein were not complied with, it had ultimately resulted into an institution of a Misc. Case No. 978 of 2020, for the purposes of execution of the judgment and decree dated 22.02.2020.
During the intervening period as per the alleged prevalent Muslim Law, a "Khula divorce", is said to have been entered into between the parties between in the Machlese Darul Khwaja, Dehradun on 04.10.2021.
One should be conscious of the fact that this aspect of khula divorce, is subsequent to the decree of 22.02.2020, which till the date of entering of Khula divorce on 04.10.2021, remained undisturbed and was subsisting in the eyes of law.
The advantage which the applicant attempts to draw is that the Misc. Case No. 978 of 2020, seeking an execution of the decree of 22.02.2020 could not have been executed in view of the terms of the Khula divorce dated 04.10.2021, which makes reference to the following effect.
नीज हमने एक दू सरे खखलाफ जो भी मुकदमात कर रखे हैं । हम फरीकेन उनको वापस लेकर खत्म करा दें गे। उनकी वापस "ये जहां और शजस वक्त जरूरत होगी पू रा पू रा टाऊन करें गे, The learned counsel for the applicant argues that in view of the aforesaid agreed stipulation of agreeing for withdrawing of all pending cases as a consequences of the Khula divorce dated 04.10.2021, its consequential effect would be that the decree rendered on 22.02.2020 in Case No. 1133 of 2014, would itself be diluted and the Misc.
Case No. 978 of 2020, Nishat Iqbal Vs. Mohd. Abu Bakar Siddiqui, would automatically stand withdrawn in view of the terms of Khula divorce dated 04.10.2021. This argument is not logical because as per the opinion of this Court, a decree rendered by this Court determining a right would still be enforceable, in accordance with law before the executing court and the subsequent proceedings resorted to for execution of a decree will not be the principle proceedings, which could fall within the alleged clause of Khula divorce dated 04.10.2021, which could have been withdrawn as per the observations made therein.
Because the Misc. Case No. 978 of 2020 is not a principal proceedings for deciding a right, as it happens to be a proceedings only for the purposes of enforcing a right which already stood decided by the judgment of 22.02.2020. Thus, an execution forum during the subsistence of a decree, cannot be said to be eradicated or mitigated by the clause of khula divorce dated 04.10.2021, which is governed by the Muslim Personal Laws, which cannot override the effect of a decree.
In that eventuality, the proceedings held by virtue of an order dated 27.07.2022 and issuance of the recovery warrant on 03.09.2022, was nothing but rather an enforcement of a decree rendered by the court of 22.02.2020.
As such, the khula divorce dated 04.10.2021, will not in any manner cloud an execution proceedings because it is not determining a right or a dispute between the parties, but, rather enforcing a right which has already been settled by the court by a judicial adjudication made on 22.02.2020.
In that eventuality, without prejudicing the rights of the applicant against the judgment and decree of 22.02.2020, as rendered in Case No. 1133 of 2014, the present 482 application lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 11.10.2022 Ujjwal