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Judgment
The petitioner in MC. No.21 of 1997 on the file of the learned Judicial Magistrate of First Class, Peddapalli, is the petitioner in this civil revision petition filed under Article 227 of the Constitution of India. The order dated 29-1-1998 passed by the learned Magistrate rejecting the application filed by the petitioner purported to be u/s 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ''the Act'') on the ground that the Court has no jurisdiction to entertain the petition, is assailed in this revision petition.
The petitioner herein is the wife of the second respondent and she filed an application before the learned Magistrate for recovery of Mehar and dowry amount and future maintenance totalling to Rs. 1,10,000/-as against the second respondent. It is her case that she was given in marriage to the second respondent on 29-12-1995 and she was divorced by the second respondent on 21-2-1997 through a legal notice by pronouncing three Talaqs in one time. After Talaq the petitioner filed a petition before the Women Protection Cell, Hyderabad, for settlement of matrimonial matter. However, the matter could not be settled. It is her case that the second respondent is working as Timber-man in the Singareni Collieries Company Ltd., Mandamarn and getting salary of Rs.5,000.00 per month. It is also her case that the second respondent has landed properties in his village. The petitioner accordingly claimed future maintenance of Rs.70,000.00; dowry amount of Rs.26,000.00 and Mehar amount of Rs.5,000.00 from the second respondent.
The second respondent opposed the application filed by the petitioner stating that the petitioner had already married one Mohd. Ankoos, who is working in the Singareni Collieries Company Ltd. Thereafter she again married one K. Mohinuddin, who is also working in the Singareni Collieries Company Limited. It is the case of the second respondent that the petitioner had suppressed the material facts. According to the second respondent the petitioner and himself never lived as wife and husband. After Talaq he sent an amount of Rs.300.00 per month during ''Iddat'' period for three months as per personal law. No amounts are liable to be paid to the petitioner, is the case of the second respondent.
In support of her case, the petitioner got herself examined as PW1 and also examined PWs 2 to 4 in support of her case. The second respondent herein, himself, was examined as RW1.
The learned Magistrate without going into the merits of the case and without deciding as to whether the petitioner is entitled for any relief as prayed for dismissed the maintenance case holding "as per Muslim law, it is for the Civil Court to decide and not for the criminal Court. Therefore, I hold that this Court has no jurisdiction to entertain this petition and the petition is liable to be dismissed."
Mr. S. Niranjan Reddy, learned Counsel for the petitioner submits that the impugned order passed by the learned Magistrate suffers from incurable jurisdictional errors. It is urged by the learned Counsel that the learned Magistrate had misdirected, himself, to the whole issue and failed even to advert to the relevant provisions under which the petitioner had filed the maintenance petition.
According to the learned Counsel, the observation made by the learned Magistrate that "under Muslim law it is for the civil Court and not for the criminal Court" suffers from lack of application of mind. It is urged by the learned Counsel that the case ought to have been disposed of on merits instead of rejecting the same as without jurisdiction.
Learned Counsel appearing for the second respondent submits that this revision petition filed under Article 227 of the Constitution of India is not maintainable and the petitioner, if at all, could have challenged the impugned order only under the provisions of the Code of Criminal Procedure, 1973 (for short'' the Code'').
In view of the rival contentions, I do not propose to express any opinion on the merits of the case and as to whether the petitioner is entitled for the relief claimed by her; but proceed to decide as to whether the learned Magistrate is right in holding that he has no jurisdiction to entertain the maintenance case, itself.
It would be appropriate to refer to Section 3 of the Act, which reads as follows:
"3. Mehar or other properties of Muslim Woman to be given to her- at the time of Divorce :--(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mehar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where reasonable and fair provision and maintenance or the amount of mehar or dower due has not been made or paid or the properties referred to in clause (d) or sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mehar or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate, if he is satisfied that-
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mehar or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her,
made an order, within one month of the date of filing of the application directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit 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 her former husband or, as the case may be, for the payment of such mehar or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period he may, for reasons to be recorded by him, dispose of the application after the said period.
(4) 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, mehar or dower due to in the manner provided for levying fines under the Code of Criminal Procedure, 1973, 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 hard in defence and the said sentence being imposed according to the provisions of the said Code.
Thus, Section 3 of the Act declares that a divorced woman is entitled to reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband and further declares that a divorced woman is also entitled to amount equal to the sum of mehar or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law. Subsection (2) of Section 3 confers a right upon the divorced muslim woman to make an application to a Magistrate for an order for payment of such provision and maintenance or mehar or dower or delivery of properties in case where there is no fair provision is made for maintenance and also where the amount of mehar or dower due to the divorced wife has not been made or paid by the former husband. Sub-section (4) of Section 3 confers jurisdiction upon the Magistrate to levy fine under the Code and also for imposing sentence against such person, who refuses to pay or comply with the directions issued under subsection (3) of Section 3 without sufficient cause. It is, thus, clear that the provisions of the Act are self-contained and provide for filing of an application before the Magistrate for realisation of maintenance, mehar or dower and other properties and confers jurisdiction upon the Magistrate concerned to make an inquiry and pass appropriate order.
Section 2(c) of the Act defines ''Magistrate''. Magistrate means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced woman resides. There is absolutely no controversy whatsoever that, in the instant case, both the petitioner and the second respondent reside within the jurisdiction of the learned Magistrate at Peddapalli. Therefore, he is the learned Magistrate before whom the petitioner could have filed an application u/s 3(1) of the Act. The petitioner had accordingly filed the application. There is absolutely no difficulty whatsoever in arriving at the conclusion that the petitioner had filed the application before the proper Magistrate, who is authorised to make an inquiry into the case. The learned Magistrate has committed serious irregularity in rejecting the case filed by the petitioner by holding that he has no jurisdiction to pass an order under Muslim law. A mere look at the provisions of the Act would have been enough for the learned Magistrate to proceed with the matter on merits. The learned Magistrate failed to advert even to the relevant provisions of the Act. The order, thus, suffers from an error apparent on the face of the record requiring this Courts'' interference in exercise of its jurisdiction under Article 227 of the Constitution of India.
It is settled law that this Court exercises power of superintendence over all Courts and Tribunals in relation to which it exercises jurisdiction and power of superintendence includes the power to correct errors which are apparent on the face of the record. The expression ''the High Court shall have superintendence over all Courts'' include ''all Courts'' which are subordinate to it, whether it is civil or criminal Court. I have no hesitation in rejecting the contention urged by the learned Counsel for the second respondent as to the maintainability of this revision petition under Article 227 of the Constitution of India.
For the aforesaid reasons, 1 hold that the order passed by the learned Judicial Magistrate of First Class, Peddapalli in MC No.21 of 1997 on 29-1-1998 suffers from incurable infirmity warranting interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The impugned order is accordingly set aside and the civil revision petition is allowed to the extent indicated above. There shall be no order as to costs. The matter is remitted to the learned Magistrate for disposal on merits from the stage at which the present order was passed by the teamed Magistrate. The learned Magistrate shall now consider the evidence and material available on record and proceed to decide the case on merits. It is needless to clarify that this Court has not expressed any opinion on the question as to whether the petitioner is entitled for any relief on merits, as it is for the learned Magistrate to decide the matter on merits.