Calcutta High Court
Sk. Basir vs The State Of West Bengal And Anr. on 2 February, 2007
Equivalent citations: (2007)3CALLT305(HC)
JUDGMENT Pravendu Narayan Sinha, J.
1. The revisional application under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been filed by the petitioner praying for quashing the proceeding being Misc. Execution Case No. 40 of 1999 now pending in the Court of the learned Judicial Magistrate,; 2nd Court, Uluberia and all orders passed therein.
2. Mr. Siladitya Sanyal, the learned advocate appearing for the petitioner submitted that the O.P. No. 2 filed an application under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act (hereinafter called the Act) before the then learned Sub-Divisional Judicial Magistrate (in short the SDJM), Uluberia which was registered as Misc. Case No. 117 of 1996. The Misc. Case was allowed ex parte on 15.9.98 and the learned Magistrate directed the petitioner to pay Rs. 1500/- per month to the divorced wife O.P. as maintenance for the "iddat" period and further directed to pay 1186: chandi to her. It was further directed by the learned Magistrate to pay the said chandi and maintenance for the 'iddat' period within 10 equal instalments. The petitioner being very poor and devoid of any means could not make the aforesaid payment for which the O.P. wife filed the Misc. Execution Case No. 40 of 1999. An warrant of arrest was issued against the petitioner and he was arrested on 19.10.01 and was taken into custody for his failure to make payment of the arrear maintenance. The petitioner moved this Court in an application for bail which was numbered as CRM No. 4181 of 2001 and by order dated 3.12.01 Sujit Barman Roy, J. (as His Lordship then Was) disposed of the application with direction that the petitioner shall be released after he pays entire amount of arrear of maintenance to the O.P.
3. Mr. Sanyal thereafter contended that the petitioner filed an application before the learned Sessions Judge Howrah and the same, was numbered as Criminal Misc. Case No. 139/02. The learned Sessions Judge by his order dated 20.3.02, observed that when the petitioner has already sent the money through money order and as the petitioner was in custody since September, 2001 the petitioner's prayer for release should be favourably considered and he should be released forthwith. The learned Sessions Judge directed the Warned Judicial Magistrate, 2nd Court, Uluberia for necessary action and, the learned Judicial Magistrate by his order dated l7.5.02 observed that since the petitioner has complied with the order passed by this Court, the proceeding should be dropped and the learned Magistrate accordingly dropped the Misc. Execution Case. Challenging the said order the divorced wife preferred criminal revision being CRR No 1995 of 2002 and this Court by order dated 30th April, 2003 disposed of the said revisional application observing that the learned Sessions Judge, Howrah and the learned Judicial Magistrate, 2nd Court Uluberia acted with irregularity by dropping the case. It was observed by this Court that as this petitioner did not make payment of 1186 chandi the direction of this Court passed earlier in CRM No. 4181 of 2001 was not fully complied with. This Court set aside the order of the learned Judicial Magistrate dated 17.5.02 and directed the learned Magistrate to proceed with the execution case.
4. Mr. Sanyal next contended before me that the learned Magistrate proceeded with the execution case thereafter and the petitioner was taken into custody for his failure to pay entire arrear, amount of maintenance. The petitioner being poor approached the State Legal Services Authority and the said Authority requested Mr. Jayanta Narayan Chatterjee, the learned advocate to represent the petitioner in this matter. According to Mr. Sanyal the term "dower' or 'mahr by no stretch of imagination can come under the ambit of maintenance. It is imperative in the interest of justice considering the distressful situation of the petitioner that the petitioner should be released forthwith from the custody. Continuation of the Impugned proceeding is an instance of abuse of the process of law and the said proceeding should be quashed. It was also contended by him that in view of provisions of Section 3(4) of the Act, the maximum period of detention for failure to comply with the order of the Magistrate may extend to one year. The petitioner is now languishing in Jail since 3rd April, 2003 which shows that he is in custody for more than three years and almost four years. His detention any further would be not in accordance with law and he should be released forthwith.
5. It was also contended by Mr. Sanyal that O.P. has in the meantime remarried and there is no chance of her being remaining neglected for want of maintenance as her present husband would look after her. Mr. Sanyal also tried to convince me by submitting that the amount of 1186 'chandi' as was ordered by learned Magistrate Is doubtful considering the status of the parties. Both the petitioner and the wife are not of such standard and they do not belong to the middle income group and rather they are poor and being so amount of chandi' ordered by the learned Magistrate seems to be doubtful. Accordingly, the petitioner should be released forthwith and the proceeding being Misc. Execution Case No. 40/99 now pending 'before the learned Judicial Magistrate, 2nd Court, Uluberia should be quashed.
6. Mr. Prabir Kumar Mitra, the learned advocate for the 0.P No. 2 submitted that the petitioner did not appear when the wife preferred CRR No. 1995 of 2002 in spite of service of the notice. If this petitioner, who was O.P. in CRR No. 1995 of 2002 appeared at that time the present problem could have been avoided. Mr. Mitra. submits that on the question of natural justice he is against detention of the petitioner in jail for years together. But, there must be same protection to the divorced wife and this Court should ensure that It is not desirable that the divorced wife becomes deserted and driven to a path of immorality being unable to maintain herself. She has children also and their maintenance is also required. Mr. Mitra further 'contended before me that the earlier order may be modified in such a fashion that the petitioner gets relief and the wife is also not deserted.
7. I have seriously considered the submissions of the learned advocates for the parties. From the submissions of the learned advocates for the parties as well as' from the contents of the revisional application and annexures made therein it appears that the O.P. No. 2 was the wife of this petitioner and was divorced by the petitioner. She filed an application under Sections 3 and 4 of the Act before the then learned SDJM, Uluberia for maintenance which was registered as Misc. Case No. 117 of 1996. The said Misc. Case was transferred to the Court of the learned Judicial Magistrate, 2nd Court, Uluberia. The present petitioner who was the O.P. before the learned Magistrate did not appear in the said proceeding and the learned Magistrate disposed of the said Misc. Case ex parte by order dated 15.9.98. Learned Magistrate directed this petitioner to pay Rs. 1500/- per month to the wife as maintenance for the 'iddat' period, 1186 'chandi' as 'mahr' or 'dower' and Rs. 400/- as litigation cost. This petitioner could not make payment of the said amount of 'iddat' and the 'chandi' 'and the wife filed one execution case which was registered as Misc. Execution Case No. 40/99, Failure of the petitioner to pay the arrear dues resulted into issue of warrant of arrest against him and he was arrested on 19.10.0i and was taken into custody. The petitioner moved this Court for ball by filing an application which was registered as CRM No. 4181 of 2001. By order dated 3.12.01 Sujit Barman Roy, J. (as His Lordship then was) disposed of the application for bail directing that the petitioner shall be released after he pays entire amount of arrear of maintenance to the O.P.
8. It appears that thereafter the petitioner filed an application before the learned Session Judge, Howrah which was registered as Criminal Misc. Case No. 139 of 2002 The learned Sessions Judge by order dated 20.3.02 directed that since the petitioner has paid the entire arrear maintenance through money order he should be released and as the petitioner is in custody since September 2001 the prayer for release should be favourably considered. The Sessions Judge thereafter directed that the petitioner be released from the custody forthwith and directed the learned Judicial Magistrate to take necessary action The, learned Judicial Magistrate by order dated 17.5.02 observed that since the petitioner has complied with the direction of this Court the proceeding should be dropped and he accordingly dropped, the Misc. Execution Case. It is evident that challenging the order dated 17.5.02 passed by the learned Judicial Magistrate, the O.P. moved this Court in CRR No. 1995 of 2002. This Court by order dated 30th April, 2003 disposed of the said revisional application and observed that this Court in CRM No. 4181 of 2002 directed that the petitioner shall be released after he pays the entire amount of arrear of maintenance. This Court found that there was no indication in respect of payment of 1186 ''chandi' and for that reason it was observed by this Court that total direction of this Court in CRM No. 4181 of 2001 was not complied with and the learned Magistrate was not right in dropping the execution case. Accordingly, this Court set aside the order dated 17.5.02 passed by the learned Judicial Magistrate, 2nd Court. Uluberia and directed him to proceed with the Misc. Execution Case.
9. It is evident that when the divorced wife filed CRR No. 1995 of 2002 this petitioner, who was O.P. in the said revisional application did not appear before this Court in spite of service and this Court on 30th April, 2003 passed the order hearing the submissions of the learned advocate for the wife. In that matter Mr. Prabir Kumar Mitra also appeared for the divorced wife who is also appearing for the divorced wife in this matter. The learned Judicial Magistrate, 2nd Court, Uluberia thereafter proceeded with the Misc. Execution case No. 40/99 and the petitioner was taken into custody for his failure to pay entire amount of maintenance. The petitioner is in custody since then though in the meantime almost four years have passed. The paramount consideration at this moment is whether the petitioner should be directed to remain in custody any further. Here requires some interpretation or clarification in respect of provisions, of Sections 3 and 4 of the Act.
10. The Act was introduced in the year 1986 for the welfare, maintenance and protection of the Muslim Women who have been divorced by their husbands so that they are not driven to a life of vagrancy, immorality and crime for their subsistence. Section 2(b) of the Act prescribes what is 'iddat period'. It shows that 'iddat period consists of three menstrual courses after the date of divorce if she is subject to menstruation, or three lunar months after her divorce, if she is not subject to menstruation and, if she is enceinte at the time of divorce, the period between the divorce and the delivery of her child or termination of pregnancy whichever is earlier. The above three categories clearly indicate that the 'iddat' period covers three months and depends upon the circumstances as mentioned in the section. In the present matter the petitioner was directed to pay Rs. 4800/- total as maintenance during 'iddat period at the rate of Rs. 1500/- per month. From the order of the learned Sessions Judge, Howrah dated 20.3.02 passed in Criminal Misc. Case No. 139/02 it appears that the petitioner paid the said amount to the O.P. wife and the learned Judge recorded payment of such amount after going through the money order receipts. This Court does not find any ground to doubt the observation of the learned Sessions Judge, Howrah and it establishes that payment of maintenance during the 'iddat period' was made by the petitioner to the O.P. who was the divorced wife of this petitioner.
11. Section 3(1) of the Act prescribes what a divorced woman is entitled to get from her former husband and it shows payment of maintenance during 'iddat period' and an amount equal to the sum of 'mahr' or 'dower' agreed to be paid to her at the time of her marriage and also of the properties given to her before or, at the time of marriage or after her marriage by her relatives or friends and where she herself maintains the children born to her before or after her divorce a reasonable and fair provision and maintenance for the children for a period of two years from the date of birth of such children. In the instant matter between the petitioner and O.P. I do not find any claim concerning maintenance for the children and return of the properties given to the O.P. before or at the time of marriage or after the marriage. As the amount of maintenance for the iddat period has been paid the point encircles only over non-payment of an amount equal to the sum of 'mahr' or 'dower' according to Sub-section (c) of Section 3(1) of the Act. It appears from the materials on record that the learned Magistrate directed payment of 1186 'chandi' as 'mahr' or 'dower'. That was on ex parte order and this petitioner did not challenge the said order in any higher forum and also did not file any application for setting aside the ex parte order, or to give him opportunity to contest the matter. If the present petitioner had the opportunity to contest the application for maintenance on the basis of evidence it could have been decided whether the claim of 'mahr' or 'dower' of 1186 'chandi' was correct or not. The said matter is now barred by limitation and has reached its finality and being so the said order of the learned Magistrate cannot be reopened.
12. Sub-section (2) of Section 3 of the Act prescribes that where reasonable and fair provision for maintenance and amount of 'mahr' or 'dower' has not been made or paid she or any authorised person by her may on her behalf make an application to the Magistrate for an order for payment of such provision and maintenance, 'mahr' or 'dower' and such an application was made before the learned Magistrate by the O.P. Thereafter, the learned Magistrate passed the order which reached its finality as indicated above and Sub-section (3) of Section 3 deals with the scope of Magistrate to pass such order. Sub-section (4) of Section 3 lays down that, if any person against whom an order has been made under Sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance of 'mahr' or 'dower' due in the manner provided for levying fines under the Code of Criminal Procedure and may sentence such person for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.
13. The petitioner could not make payment of an amount equal to sum of 'mahr' or 'dower'. It does not appear from the Misc. Execution Case filed by the wife that she made a claim in respect of part of, any amount remaining unpaid for the 'mahr' or 'dower'. On the other hand, it appears that she filed the execution case for non-payment of the whole of the amount equivalent to 'mahr' or 'dower'. According to Sub-section (4) of Section 3 of the Act the term of imprisonment may extend to one year or until payment if sooner made. The. O.P. did not file any application for execution separately month by month claiming part of the amount equivalent to unpaid 'mahr' or 'dower'. Had it been a case that the O.P. filed the execution case in each month for the unpaid amount of 'mahr' or 'dower' the matter would have been different. In the present matter the petitioner is in custody for almost four years and considering the grounds of natural justice, equality and good conscience the petitioner cannot be detained any further when in view' of Sub-section (4) of Section 3 of the Act he can be directed to suffer imprisonment which may extend to one year,. The term until payment if sooner made in this matter mixes with the claim of the O.P. in the Misc. Execution Case where she claimed payment of amount equivalent to entire unpaid 'mahr' or 'dower'.
14. Attention of the Court was drawn to the subsequent fact of remarriage of the O.P. but, no paper or document was produced before the Court to establish that O.P. has in the meantime married again. The Act does not impose any liability on the husband to maintain the divorced wife after payment of maintenance during 'iddat' period and amount equivalent to 'mahr' or 'dower'. Rather Section 4 of the Act indicates that where a divorced woman has not remarried and is not able to maintain herself after the 'iddat' period the magistrate may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fair and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives. Sub-section (2) of Section 4 lays down that whereas divorced woman is unable to maintain herself and she has no relatives as mentioned in Sub-section (1) or such relatives or any one of them have not enough means to pay maintenance, the Magistrate may by order direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 or under any other law for the time being in force in a State, functioning in the area in which the woman resides to pay such maintenance as determined by him under Sub-section (1) or, as the case may be, to pay the shares of such relatives, who are unable to pay at such periods as he may specify in his order.
15. Mr. Mitra, the learned advocate for the O.P. submitted that some, protection to the O.P. is required. It is clear from the status of the husband petitioner that he is too poor to pay any maintenance to the O.P. If the O.P. has any relative she should approach the Court for order for maintenance to her or, if she has no relative she should approach the learned Magistrate for directing the State Wakf Board to provide for her maintenance. If she has been remarried in the meantime really, though this Court did not see any such paper, question of maintaining her by the relatives or Wakf Board does not arise as after re-marriage it is duty of her new husband to maintain her.
16. Be that as it may, in view of the discussion made above, the petitioner cannot be detained in imprisonment for more than a year for his failure to pay an amount equivalent to 'mahr' or 'dower'. The continuation of the Misc. Execution Case would be an abuse, of the process of Court as well as law and it should be quashed. Considering the entire facts and circumstances as Well as the background of this case this Court finds that it is a fit case where this Court should exercise its inherent power to quash the Misc. Execution Case No. 40 of 1999 now pending in the Court of the learned Judicial Magistrate, 2nd Court, Uluberia.
17. In view of the discussion made above the revisional application succeeds and is allowed. The Misc. Execution Case No. 40 of 1999 new pending in the Court of the learned Judicial Magistrate, 2nd Court, Uluberia is hereby quashed. The aforesaid discussion makes it clear that the petitioner should be released forthwith from the custody. The learned Judicial Magistrate, 2nd Court, Uluberia is directed to issue necessary warrant for the release of the petitioner from custody forthwith. '
18. Criminal section is directed to forward a copy of this order to the learned Judicial Magistrate, 2nd Court, Uluberia for information and necessary action.
19. Learned Registrar (Administration) is, directed to forward a copy of this order or at least gist of the order to the learned Judicial Magistrate, 2nd Court, Uluberia, by fax for information and necessary action.
C.R.R. No. 3138 of 2006Later:
Let xerox certified copy of this order be given to the parties within two weeks from the date of making of such application on payment of proper fees and charges.