Allahabad High Court
Muslim Alias Bhoora vs State Of U.P. And Anr. on 3 May, 1995
Equivalent citations: 1996CRILJ98
ORDER C.A. Rahim, J.
1. None appears on behalf of the revisionist even when the list is revised. Today is fixed for admission of the Revision. The only ground that has been taken is that the provision of sub-section (3) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was not followed, as no order was passed within one month from the date of filing of the application and hence the proceeding is
2. An application was filed by Smt. Khatoon alias Zaitun on 16-12-1987 for allowing maintenance during the Iddat period at the rate of Rs. 500/- per month, Mahr of Rs. 1000/- along with the prayer for recovery of the articles or its price mentioned in Schedule 'A' of the petition before the court of the II Munsif Magistrate, Muzaffarnagar and the case was started under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, directing the revisionist to appear on 15-1-1988 but the revisionist did not attend on that day and the matter was adjourned, ultimately on 23-2-1988 the revisionist appeared in the lower court but no written statement was filed till 26-4-1988 for which cost was imposed,
3. A revision was filed for non-compliance of the provision of sub-section (3) of Section 3 of the said Act but the same was dismissed on the ground that it was not practicable for the Magistrate to dispose of the application within one month when the revisionist himself took several adjournments and ultimately did not file written statement till 26-4-1988. The learned Judge also held that there is no provision in the law that such reasons should be recorded before expiry of the stipulated period of one month and it should be recorded simultaneously with the disposal of the application after expiry of the said period. Being aggrieved by the said order of the learned Ist Addl. Sessions Judge the instant revision has been filed.
4. Sub-section (3) of the Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides that where an application has been made under Sub-section (2) by a divorced woman, the Magistrate may make an order within the month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision for maintenance to the divorced woman as he may determine as fit and proper having regard to the circumstances. He may also pass an order for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of Sub-section (1) to the divorced woman. There is one proviso to that sub-section which prescribes that if the Magistrate finds it impracticable to dispose of the said application within the said period, he may for reasons to be recorded by him, dispose of the application after the said period. This section provides for speedy remedy when any prayer under Section 3 of the Act is filed by a divorced woman before a competent court. The contention of the learned counsel for the revisionist is that such a speedy remedy could not be made available to the divorced lady and this petition should be dismissed as the Magistrate did not record reasons for such delay in disposing of the said application. It makes out a proposition that the Legislature intended that if no speedy remedy is made available to a destitute lady, her application should not be considered. That can never be the proposition of enacting the special Act for the purpose of giving relief to a Muslim Divorced lady. If the Magistrate is unable to dispose of the application within one month as provided in Sub-section (3) of Section 3 of the Act and for that matter if he does not record any reason a divorced lady is out of ground for no fault of her own. For granting relief to a lady she is to file an application with necessary details and allegations if any, and it is the duty of the court to take speedy recourse to make available to the petitioner the relief granted by the Legislature under the special legislation and if he cannot do it within the period which was provided in the Act the lady should not suffer. In the instant case it appears that the petition was filed on 16-12-1987. Order to issue notice was passed on the same day fixing 15-1-1988 for service which, though within one month of the date of filing of the application, was not in conformity with the spirit of the Act. A short date should have been fixed for that purpose. When notice was not served on 15-1-1988 a date was fixed on 23-2-1988. From paragraph 6 of the judgment of the learned lower court it appears that on 23-2-1988 the revisionist appeared and a copy of the application was furnished to him on that date but no written statement was filed by him in spite of imposition of cost till 26-4-1988. When this is the conduct of the revisionist he should not claim for a relief under Sub-section (3) of Section 3 of the Act by dismissing the petition itself. This provision refers that the said section is directory and not mandatory. The word "may" has been used in all the places even when in the proviso where it has been stated that the Magistrate may record the reason if it is not practicable for him to dispose of the application within one month. So I do not think that by not following the direction, as mentioned in Sub-section (3) of Section 3 of the Act the Magistrate has committed any illegality for which the proceeding would be vitiated.
5. The learned A.G.A. has submitted that this Revision is not maintainable as it is barred under Section 397(2), Cr.P.C. It appears from the record that against the order of the Magistrate a revision was preferred before the Sessions Court. The learned Ist Addl. Sessions Judge, Muzaffarnagar, dismissed the said revision on 28-7-1988. This is the second revision filed by the same person for which I find that the second revision, after dismissal of the first revision filed by the same person, is barred by law.
6. The revision is accordingly dismissed. The interim order, if any, is vacated.