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Judgment
Samarendra Pratap Singh, J.—Heard the learned Counsel for the parties.
Petitioner No. 4 has appeared in person and argued the case. He has prayed for quashing order taking cognizance dated 19.4.2003 passed by J.M. 1st Class, Patna in Complaint Case No. 395(c) of 2000 dated 26.2.2002 under Sections 498(A) and 313 of the I.P.C. and summoning them to face trial
The complainant. Fatima Khatun. stated that she was married to Md. Azam Ansari on 5.12.1999 at Phulwarisharif, Patna and a child was born out of their wedlock. After marriage all the accused persons harassed the complainant for non-fulfilment of demand of colour T.V. Fridge and motor cycle. The complainant in course of treatment went to Bhatinda. Punjab with her husband.
The petitioners have challenged the order dated 19.4.2003 taking cognizance of offence under Sections 323 and 498(A) of I.P.C. on the following grounds. He states that on the date of filing of the complaint O.P. No. 2 was divorced and as such she could not have filed a complaint against him. Secondly no occurrence took place in Patna, as such, the instant complaint petition is not maintainable before the Patna court.
The petitioner slates that in para 16 of the complaint petition, the complainant stated that her husband has sent a lawyer''s notice in which he has stated that he has divorced her. Further more, the complainant on S.A. stated that the latter divorced her by a notice. On these basis learned Counsel for the petitioners states that the instant complaint is not maintainable, as at the time of filing of complaint, the complainant was already divorced.
Whether a muslim woman can be divorced by a notice or by a written statement is no more res-integra and has been authoritatively settled by Hon''ble Supreme Court in case of Shamim Ara Vs. State of U.P. and Another, The apex Court after noticing Holy text books and decision rendered in the case of Rukia Khatun v. Abdul Khalique Laskar reported in (1981) 1 LR 375 held that talaq in order to be effective has to be pronounced. Mere plea taken in written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting Talaq. The relevant extract of para 14 is quoted herein below:
In Rukia Khatun case the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, is (i) that "talaq" must be for a reasonable cause; and (ii) that it must be preceeded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, "talaq" may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.
The Apex Court further observed as follows in para 16 of its Judgment:
We are also of the opinion that the talaq to be effective has to be pronounced. The term " pronounce" means to proclaim, to utter rhetorically, to declare, to utter, to articulate (see Chambers 201'' Century Dictionary, New Fdition. P. 1030). There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement on 5.12.1990. We are very clear in our mind that a mere Plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
Subsequently, a Division Bench of this Court in the case of Rashid Nazfi v. Shahin Gulab reported in 2005 (3) PLJR 743 also observed that a mere recital in notice that divorce has been effected would not be conclusive prove of the same. This Court also in the case of Musarat Jahan and Another Vs. State of Bihar and Another held that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating Talaq, where divorce is being disputed. In such circumstances whether divorce has been effected or not, will be decided on basis of evidence and principles laid in Judgments referred above, In para 16, the complainant stated that she received a lawyers notice dated 26.12.2001, wherein it is stated that petitioner No. 4 has divorced her. Similarly on S.A., she stated that her husband has divorced her by a notice. But she no where specifically admits that she is divorced.
The statements in complaint or S.A. referring to husband''s claim cannot be constituted as an admission of the complainant that divorce has been effected. She merely states that her husband claims that he has divorced her by making such claims in his lawyer''s notice. She has merely stated the contents of lawyer''s notice made on behalf of petitioner No. 4. As such, at this stage it would be difficult for me to hold that the complainant was divorced prior to filing of the complainant. Thus, the order taking cognizance cannot be quashed on the plea of the petitioner that O.P. No. 2 was not his wife on the date of filing of the complaint. As such the contention of the petitioner is rejected.
The petitioner has also challenged the order taking cognizance on the ground that complaint was not maintainable at Patna. This plea of the petitioner is too devoid of merit as the complainant in the complaint petition specifically alleged in para 4 of complaint that accused persons made a demand of Rs. 50,000/- at Fulwarisharip within the district of Patna and abused her parents. As such the complaint before Patna court is fully maintainable.
The decision in case of Manish Ratan and Others Vs. State of M.P. and Another, , relied upon by petitioners would be of no help, rather it would support the case of the prosecution on point of territorial jurisdiction. In aforesaid case, the apex Court held that Section 177 of I.P.C. ordains that an offence shall shall be ordinarily tried by a court within whose local jurisdiction it was committed. Thus the emphasis is on commission of an offence and not whether some accused or all accused committed offence at one place or different places. Further more, when offence by accused are committed at more than one places, then as per aforesaid Judgment, the case can be tried by any of the courts within whose local jurisdiction the offence has been committed. The place Phulwarisharif falls within territorial jurisdiction of Patna court, as such it has jurisdiction to try the case.
As n result this quashing application is rejected with liberty to the petitioner to raise all these points at the time of framing of charge.