SHABIHUL HASAN JAFARI Vs. ZARIN FATMA

JUDGEMENT

(1.) A question of quite considerable importance that falls for determination is whether a maintenance proceeding arising under the Muslim Women (Protection of Rights on Divorce) Act, 1985 (for short 'the Act') having once been dismissed for default of the petitioner could be restored for adjudication on merit. In the present case, parties are Muslims and are governed by their personal law. Admittedly, opposite party No. 1 being a dvorced woman approached the competent Court claiming maintenance for herself during the Iddat period as also for her minor child as provided in Section 3 of the Act. On the date of hearing she being found absent, the learned Magistrate dismissed the case for default. Thereupon, she moved an application to recall the order of dismissal and to decide the case on merit. Her prayer was allowed and consequently the order was recalled and the case was restored. Aggrieved thereby the petitioner filed a petition to recall the said order. The learned Court below, however, on consent of the parties dismissed the said petition as not pressed, inasmuch as, the parties agreed that the case may be disposed of on merit on the basis of the evidence to be adduced by them. Accordingly date was fixed for hearing. In the meanwhile the petitioner filed another petition to recall the order of restoration mainly on the ground that Act did not permit the Court to restore the case once it was dismissed for default. By the impugned order, the Court rejected the petition and it is against that order the present case has been filed.

(2.) Learned counsel for the petitioner strenuously contended that once the case was dismissed for default of opposite party No. 1 the learned Magistrate become functus-officio and, therefore, had no jurisdiction to recall the order and to restore the case for fresh hearing. According to the counsel, the said order being revisable, it was open to the opposite party No. 1 to approach the revisional authority to get the same annulled/set aside. In support of his submission he relied upon the decision of the Apex Court in the case of Major General A. S. Gaurava v. S. N. Thakur, 1986 All Cri C 346 : (AIR 1986 SC 1440). On the other hand, learned counsel for the opposite party No. 1 controverting the aforesaid submission urged that a maintenance proceeding under the Act being civil in nature, it was within the competence of the Magistrate to recall the order of dismissal passed by non-appearance of the opposite party No. 1 and to restore the case for effective adjudication on merits. In view of the aforesaid contentions made at the Bar, the questions that rise for determination are : 1. Whether a petition for maintenance filed either under the Act or the Code of Criminal Procedure can be dismissed for default of the petitioner? 2. Whether the Magistrate having dismissed such petition on the petitioner's absence can recall the order of dismissal and restore the case?

(3.) Prior to the Act came into force, a married woman, whether divorced or not on being refused of maintenance by her husband was entitled to approach the Magistrate Ist. Class under Section 125 of the Code of Criminal Procedure, 1973 (for short "the Code") for grant of maintenance. However, separate provision was made in the Act to claim such relief by a divorced woman of the Muslim community for herself as well as for her minor child. The Act contains in total seven sections of which Section 2 is the definition section. Section 3 relates to the entitlement of maintenance of a divorced woman as well as for her child besides 'mahr' or dower agreed to be paid to her at the time of marriage and the other properties given to her before or at the time of marriage. Section 4 envisages necessary orders for maintenance to be passed by the Magistrate. Section 5 makes provision enabling either party to make a declaration by affidavit to approach the common law forum for resolution of the dispute. Section 6 relates to the Rule making power of the Central Government and Section 7 is a transitory provision. In exercise of power conferred by Section 6 of the Act, the Central Government has framed Rules namely; Muslim Women (Protection of Rights on Divorce) Rules, 1986 (for short "the Rules") of which Rule 4 relevant for the purpose reads as under :