MOHAMED ISMAIL SHERIFF Vs. KHAIRUNNISSA

JUDGEMENT

(1.) THIS is a petition under Sec.482, Criminal Procedure Code to call for records and quash the proceedings in M.C.No. 145 of 1987 pending on the file of the Judicial First Class Magistrate, Coimbatore.

(2.) THE petitioner and respondent herein are Muslims. THE respondent herein is the wife of the petitioner herein. She filed M.C.No.145 of 1987 against the petitioner herein under Sec.125, Criminal Procedure Code seeking maintenance alleging that she was married to the petitioner on 19.5.1948 and six children were born to them and subsequently due to some property dispute between the petitioner and respondent, the petitioner herein beat her and drove her along with her son Abdullah on 5.1.1986 and 5.7.1987 the petitioner married one Habda Begum and that he also filed a suit before District Munsif, Tiruppur and obtained an order of injunction against the respondent from entering into his house. Thus the respondent was sent out of the matrimonial house without sufficient cause and therefore she filed M.C.No. 145 of 1987 before Judicial First Class Magistrate, Coimbatore. THE said M.CNo.145 of 1987 was opposed by the petitioner herein contending that the respondent herein got herself divorced under Muslim Law by method known as �Khola� and therefore petition under Sec.125, Criminal Procedure Code, filed by the respondent before the learned Magistrate is not maintainable. THE petitioner also denied the other allegations levelled against him by the respondent in M.C.No. 145 of 1987.

(3.) ADMITTEDLY, the petitioner and respondent are Muslims and marriage between them took place as per Mohammedan Law. The only issue is whether the respondent herein has divorced the petitioner on her own accord. If she is a divorced woman, the jurisdiction of the learned Magistrate under Sec.125, Criminal Procedure Code will be ousted. Whether the respondent is a divorced woman or not itself is in dispute. Under these circumstances, it is not necessary to go into other contentions raised by the parties. The question whether the respondent is a divorced woman or not is an issue to be gone into by the trial Court on the basis of evidence, oral and documentary and not before this Court under Sec.482, Criminal Procedure Code. Therefore, there is no justification to call for the records and quash proceedings pending before the learned Magistrate at this stage. Hence, this petition is dismissed. The learned Magistrate will decide the issue whether the respondent is a divorced woman or not, at the first instance and then proceed further in the matter if the issue is decided against the petitioner.