SAMAN ISMAIL Vs. RAFIQ AHMAD

JUDGEMENT

(1.) A learned single Judge has referred the following question for decision by a larger Bench :

(2.) On the application moved by the applicant under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short, the Act) an order was passed by a Magistrate in her favour. The opposite party, Rafiq Ahmad, preferred Crl. Revision No. 256 of 1999 against the order of the learned Magistrate before the Sessions Judge, Fatehpur. At the time of the admission of the revision, an objection was raised by the applicant that against an order passed by a Magistrate under the Act no revision was maintainable under Section 397, Cr. P.C. The learned IInd Addl. Sessions Judge Fatehpur, by his order dated 19-7-1999 repelled the objection of the applicant and admitted the criminal revision for hearing. Feeling aggrieved by the aforesaid order, the applicant has filed the present revision in this Court. It was contended before the learned single Judge, who heard the revision for admission, that there is no provision under the Act under which a revision may be filed against an order passed by the Magistrate and, consequently, the order dated 19-7-1999 passed by the IInd Additional Sessions Judge, admitting the revision for hearing, was illegal. In support of this submission, reliance was placed on a decision by a learned single Judge in Salim v. Judicial Magistrate, Haridwar, 1996 JIC 30, wherein it was held that there was nothing to indicate that the provisions of Code of Criminal Procedure would apply to the applications given under the Act and, therefore, Section 397, Cr. P.C. was not applicable. It was further held that there being no other provision under which an order of a Magistrate may be challenged, the remedy of an aggrieved party lay in filing a writ petition against the said order. The learned single Judge, who heard the present criminal revision for admission, expressed doubt about the correctness of the law laid down in Salim v. Judicial Magistrate, Haridwar (supra) and, accordingly, referred the matter for decision by a larger Bench.

(3.) We have heard Sri R. B. Sahai for the applicant who has contended that the Muslim Women (Protection of Rights on Divorce) Act 1986, (in short, the Act) is a complete Code and there being no provision in this Act for challenging the order of a Magistrate, a criminal revision under Section 397, Cr. P.C. against the said order is not maintainable. Sri S. A. Jilani, appearing for opposite party No. 1, has contended that the view taken in Salim v. Judicial Magistrate, Haridwar (supra) is not correct and an order passed by the Magistrate under the Act is amenable to revisional jurisdiction under Section 397, Cr. P.C. Sri Vinod Prasad, who appeared as amicus curiae on the request of the Court, has submitted that the Act is a very small one containing only 7 sections and it simply makes provision for maintenance of Muslim women who have been divorced by or have obtained divorce from their husbands. He has further submitted that the Act does not make any provision as to how the proceedings have to be conducted or the application is to be heard and the judgment is to be written. The Act makes reference to Code of Criminal Procedure, 1973, at several places which showed the intention of the Legislature that where the Act was silent or did not make any specific provision, the matter would be governed by the aforesaid Code. Sri Vinod Prasad has thus submitted that since the Act did not make any provision for challenging an order passed by a Magistrate nor made any provision to the effect that the order of the Magistrate would be final, a revision against the order of the Magistrate would, therefore, be maintainable under Section 397, Cr.P.C. and the view taken in Salim v. Judicial Magistrate, Haridwar (supra) does not lay down the correct law.