HASSAINAR Vs. RAZIYA

JUDGEMENT

(1.) PETITIONER and first respondent were husband and wife. Two children were born in the wed-lock. On 18. 1. 1986 the marriage was dissolved. Six and a half years later i. e. on 16. 7. 1992 the first respondent (former wife) filed the application before a judicial magistrate of first class claiming reasonable and fair provision and maintenance. When petitioner got notice from the lower court, he filed the present petition invoking inherent jurisdiction of the High Court to quash the claim on the ground of limitation.

(2.) CONTENTION of the petitioner is founded on Art. 137 of he Third Division of Second Schedule to the Limitation Act, 1963 (for short' 'the act' ' ). As per the said Article, a period of three years is prescribed for "any other application for which no period is provided elsewhere in this division" from when the right to apply accrues. According to the learned counsel, right to apply would have accrued at least on the expiry of "iddat" period which followed dissolution of marriage. He pointed out that even though the Muslim Women Act came into force only on 19. 5. 1986, Sec. 3 got retrospective operation as held by a learned single Judge of this Court in hyderkhan v. Meharunnissa, (1992)2 K. L. T. 330.

(3.) UNDER the Evidence Act "court" includes all judges and magistrates. UNDER the Limitation Act, 1963 "application" includes a petition. It is contextually appropriate to refer to the definition "applicant" in Sec. 2 (a) of the Limitation Act as including a petitioner or any person from or through whom an applicant derives his right to apply etc. , As the Supreme Court has indicated in Kerala State Electricity board, Trivandrum v. T. P. K. Aliumma, 1976 K. L. T. 810: A. I. R. 1977 S. C. 282, that any other application filed in a court under any act would fall within the ambit of Art. 137 it cannot be understood that the Supreme Court had driven a wedge between civil court and criminal court for the application of the said article. Thus, in the light of the decision in Kerala State Electricity Board, trivandrum v. T. P. K. Aliumma, 1976 K. L. T. 810: A. I. R. 1977 S. C. 282, Art. 137 would govern applications envisaged in the Code of Criminal Procedure also (for which no other period has been prescribed ).