SHAFAAT AHMAD Vs. FAHMIDA SARDAR

JUDGEMENT

(1.) This is a revision against the order of the Magistrate passed in proceedings under the Act (The Muslim Women (Protection of Rights on Divorce) Act, 1986). The parties are Muslims. The husband divorced his wife. The wife filed an application under S.3 of the Act. The Magistrate issued notice to the husband. The husband was serving in Navy in Goa. There notice was served on him on 19th Oct., 1987 by registered post. The case was fixed for 9th Nov., 1987. The Commanding Officer of the husband sent a telegram and a letter on 30th Oct., 1987 to the Magistrate requesting him to fix some other date in February, 88 as the husband could not be relieved to attend the court. The husband instructed his brother, who was resident of another district, to make enquiry regarding the case in the court of the Magistrate. The husband alleged that his brother could not get any information as the case had been transferred to another court and this is not controverted. Then on 18th November, 1987 the case was ordered to proceed ex parte. Ultimately on 6-1-88 an ex parte order under S.3(3) of the Act was passed. On 7-1-88 the brother of the husband gave an application to recall the ex parte order. On 8-1-88 the learned Magistrate passed an order calling upon the husband to comply with the order of the court or to show cause. This order was served on to husband in Goa on 27-1-88. The husband could not get leave prior to 31st January, 88 to come to attend the court as alleged by him. On 2-2-88 the husband came to the court of the Magistrate and got the file inspected and he says that it was on that date that the order of the Magistrate dated 6-1-88 passed under S.3(3) of the Act became known to him. On 3-2-88 the husband gave an application for recalling the order. This application to recall the order and the application given by the brother of the husband on 7-1-88 to recall the same order, were rejected by order dated 26-4-88. In this order the Magistrate held regarding application given by the brother that he had no right to move the application because he was never instructed by the husband to move such application. Regarding husband's application, the learned Magistrate said that it was barred by limitation. It is against this order of 26-4-88 that the present revision has been filed by the husband and it is being opposed by the divorced wife.

(2.) A preliminary objection has been raised on behalf of the wife that the revision is not maintainable and the learned Counsel for the wife has referred to the case of A.A. Abdullah, AIR 1988 Guj 141. In this case some other point was under consideration and casually to support the argument that the matter should be disposed of expeditiouly the single Judge of Gujarat High Court observed that it would be worthwhile to note that no appeal or revision is provided against the order passed by the Magistrate under S.3 or 4 of the Act. The learned Judge was not deciding the point whether revision is maintainable or not. This stray observation was made casually while considering other point. Hence, it appears that this point was not properly debated and this stray observation cannot be of much help. The simple thing is that under the Act this order is passed and was passed by the Magistrate. Section 397 of the Code of Criminal Procedure provides that the High Court may call and examine the record of any proceeding before any inferior criminal court and the court of the Magistrate is an inferior criminal court. Hence, there is no reason why the order should not be revisable by the High Court. The fact that it has not been said in the Act that the order is revisable, is of no consequence. A provision need not be made in every Act and it is sufficient if it is provided in one Act. The Act provides that the order is to be passed by the Magistrate and the Code of Criminal Procedure provides that the order of the Magistrate can be revised by the High Court. The Act does not exclude the application of the Code of Criminal Procedure. So, Code of Criminal Procedure has to be given effect and the order passed by the Magistrate under S.3 of the Act becomes revisable in view of the provisions in the Code of Criminal Procedure. Therefore, the preliminary objection is rejected.

(3.) Then it was stated that this order is only an interlocutory order and in view of Sub-Section (2) of S.397 of the Code of Criminal Procedure, there can be no revision against an interlocutory order. The Magistrate passed the ex parte order under Sub-Section (3) of S.3. Under this provision, rights and liability of wife and husband are finally (decided by the Magistrate. Then comes Sub-Section (4), but it relates to execution of the order. If the Magistrate finds that the husband is not complying with the order without sufficient cause, he executes the order passed under Sub-Section (3) through issuing a warrant for levying the amount of maintenance or passing an order for imprisonment of the husband. Thus, rights of the parties regarding I relief to be given to the wife are finally decided under Sub-Section (3). When the rights are finally decided under Sub-Section (3), the order will not be an interlocutory order and revision is maintainable.