CRMC/38/2010 of MUSHTAQ AHMED Vs FIRDOS TAHIRA AND ANR. on 29 December 2017

1. Through the medium of present petition, petitioner seeks quashing of order dated 09.02.2012, passed by the court of learned 2[nd] Additional Sessions Judge, Jammu in File No. 133-A/Misc. titled Mushtaq Ahmed Vs Firdos Tahira & another and judgment dated 31.08.2009, passed by the court of learned Special Mobile Magistrate, Jammu in file No. 06/Complaint titled Firdos Tahira Vs. Mushtaq Ahmed. order dated 09.02.2012, passed by the court of learned 2[nd] Additional Sessions Judge, Jammu in File No. 133-A/Misc. titled Mushtaq Ahmed Vs Firdos Tahira & another and judgment dated 31.08.2009, passed by the court of learned Special Mobile Magistrate, Jammu in file No. 06/Complaint titled Firdos Tahira Vs. Mushtaq Ahmed.

2. It is stated in the petition that the petitioner was married to respondent No.1 and the respondent No. 2 is the daughter of petitioner. The marriage between the petitioner and respondent No. 1 has been dissolved by medium of a divorce deed executed and registered with Notary Public on 01.03.2004 and after dissolution of the marriage, the matrimonial relations between the parties have ceased. The said divorce has been given as per Muslim Personal Laws and after the divorce, the petitioner has paid maintenance to the respondent No. 1 till the period of Idat as is requirement of the Muslim Personal Law. After the expiry of Idat, the respondent No. 1 is not entitled to any maintenance from the petitioner No.1 and the respondent No. 2 is the daughter of petitioner. The marriage between the petitioner and respondent No. 1 has been dissolved by medium of a divorce deed executed and registered with Notary Public on 01.03.2004 and after dissolution of the marriage, the matrimonial relations between the parties have ceased. The said divorce has been given as per Muslim Personal Laws and after the divorce, the petitioner has paid maintenance to the respondent No. 1 till the period of Idat as is requirement of the Muslim Personal Law. After the expiry of Idat, the respondent No. 1 is not entitled to any maintenance from the petitioner being his divorced wife as per the provisions of Section 488 of Cr.P.C. It is further stated that the respondent No.1 herein filed a petition for grant of maintenance under Section 488 Cr.P.C for herself and for her daughter i.e. respondent No. 2 before the court of learned Special Mobile Magistrate, Jammu in which evidence adduced by the respondents was recorded. However, the learned Magistrate did not record the statement of the petitioner or his witnesses and proceeded ex-parte against the petitioner on 04.06.2009 despite the fact that the petitioner was present in the court. The ex-parte Judgment dated 31.08.2009 was announced against the petitioner by the learned Magistrate whereby the learned Magistrate granted maintenance to the respondents @ Rs. 3,000/- per month. Being aggrieved of the Judgment dated 31.08.2009 passed by the learned Magistrate, the petitioner herein filed a revision petition before the court of learned 2[nd] Additional Sessions Judge, Jammu titled Mushtaq Ahmed Vs. Firdos Tahira & another. The said revision petition has been dismissed by the learned 2[nd] Additional Sessions Judge, Jammu vide order dated 09.02.2010 on account of non-payment of 75% of the arrears of maintenance by the petitioner. It is further stated that the petitioner maintains the present petition on the following grounds:- a)That the Judgment dated 31.08.2009 and the order dated 09.02.2010 passed by the learned courts below are contrary to the provisions of law, therefore, the same deserve to be quashed.

b)That the order is bad in the eyes of law and is required to be quashed on the ground that the revision petition which was filed by the petitioner cannot be decided under law in default but has to be decided on merits alone as the revision petition is a remedy of law and not of fact. The learned Court below has committed serious and grave error while dismissing the revision petition filed by the petitioner. On this ground alone the order impugned dated 09.02.2010 cannot sustain the test of judicial scrutiny and, therefore, the same deserves to be set aside.

c)That even if the arrears of maintenance have not been deposited by the petitioner, the learned trial courts at best had vacated the stay order so that the order of maintenance could be executed, but in no case the revision petition could have been dismissed. The learned court below has committed a serious illegality while dismissing the revision petition of the petitioner, therefore, the same deserves to be quashed.

d)That the order passed by the court below is also bad in the eyes of law as the same order has been passed:-

(i) Without allowing the petitioner to adduce his evidence in the matter;

(ii) Without hearing the petitioner;

(iii) Without reference to the fact that the petitioner had already divorced the respondent No. 1 vide a divorce deed duly executed and registered with the Notary Public.

On this ground also, the order as well as judgment impugned deserves to be quashed.

e)That both the courts below while deciding the petition under section 488 Cr.P.C and revision petition have not appreciated the provisions of law in true spirit and perspective and as such both these judgments and order deserves to be set aside.

f)That viewed from any angle the order and judgment impugned are totally contrary to the provisions of law, therefore, the same cannot sustain the test of judicial scrutiny and deserves to be quashed.

3. I have heard learned counsel for petitioner, who has reitirated all grounds taken in memo of petition. I have also considered the law on the subject. taken in memo of petition. I have also considered the law on the subject.

4. The inherent power of the court under 561-A Cr.P.C. is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under the Cr.P.C. Inherent powers cannot be exercised assuming that the statute an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under the Cr.P.C. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. Term "ends of justice" and "abuse of the process of the court" have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim "quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest".

5. Reverting back to the facts of the present case, perusal oforder dated 09.02.2012, passed by the court of learned 2[nd] Additional Sessions Judge, Jammu in File No. 133-A/Misc. titled Mushtaq Ahmed Vs Firdos Tahira & another, it is evident that Court did not find any perversity in order dated 31.08.2009, passed by the court of Special Mobile Magistrate, Jammu in file No. 06/Complaint titled Firdos Tahira Vs. Mushtaq Ahmed.

6. I have also gone through both the orders of court below; both these orders have been passed after appreciation of facts. Further, petitioner has based this petition on the basis of Triple Talaq that too has been declared un-constitutional by Apex Court.

7. In 1995 (2) CRIMES 306 in casetitled Shri Ganesh Narayan Hegde vs Shri S. Bangarappa And Ors., it is held as under by the Apex Court:- “In our opinion, while acting under Section 482 and that too after thelearned Sessions Judge had declined to interfere in the matter, the High Court ought not to have entered the arena of appreciation of evidence nor should it have recorded a finding that the complaint was the result of political differences or that itwas more a matter of prestige than a genuine proceeding. The last mentioned conclusion is drawn from the averments in the complaint, from the fact that the complainant is pursuing the complaint and from the ipse dixit of the accused; we are unable to appreciate this reasoning.”

8. No law points have been involved. There is no inherent lack of jurisdiction in the orders under challenge. jurisdiction in the orders under challenge.

9. In view of what has been discussed above, this petition is dismissed.

Jammu 29.12.2017 Narinder

(Sanjay Kumar Gupta) Judge

This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.

( Tashi Rabstan )

Judge

Jammu 29.12.2017 Narinder