ABDUL MAJEED KHAN Vs. SURIYA PARVEEN

JUDGEMENT

(1.) NON -applicant Suriya Praveen is the wife of applicant No. 3, Abdul Salam Khan. Applicants 1 and 2 are parents of applicant No. 3. Applicant No. 3 and the non -applicant were married on 25.5.88 according to Muslim rites. On 2.7.88 the marriage was dissolved in accordance with the Muslim Law. On 11.7.88 non -applicant filed an application (Annex. C) u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter the Act) in the Court of Judicial Magistrate First Class, Jabalpur against her husband. In that she claimed a sum of Rs. 84,189/ - from her prior husband on account of agreed maher, maintenance during Iddat period, money equivalent of ornaments, utensils and marriage expenses. Present petitioner No. 3 entered appearance in that proceeding. The matter was fixed for recording parties evidence on 30.7.91, on which date the present non -applicant remained absent, though her counsel was present. Adjournment was sought on the ground that Smt. Suriya Praveen was sick and, therefore, her witnesses also could not appear. The Court observed that she was allowed time to produce her witnesses fifteen times since 1989, but neither she appeared nor her witnesses. She also did not pay process fee and diet money for summoning her witnesses. Considering these facts, the learned Court came to the conclusion that the petitioner (hear is the non -applicant) had no interest left in the matter and, therefore, the prayer for adjournment was refused and the case was dismissed. (Annexure -D). Thereafter on 22.9.92 the non -applicant sent a postal notice to the present petitioners, copy whereof, the non -applicant's learned counsel is directed to file and the same is marked Annexure -Z. This notice was returned back unserved with an endorsement that the addressee refused to take delivery. Then the present non -applicant filed a criminal complaint in the Court of Judicial Magistrate First Class, Jabalpur against the present petitioners u/Ss. 406/109 I.P.C. and section 3 (1) (a) (c) and (d) of the Act. The accused persons raised objections as to the maintainability of that complaint on grounds of mis -joinder of causes of action and limitation. These objections were overruled and vide impugned order dated 27.7.94, the learned Magistrate Smt. N.V. Kaur ordered the proceedings to proceed since cognizance had already been taken. These facts are not in dispute.

(2.) THE petitioners have come up in revision against the said order. The first submission on behalf of the petitioners is that section 3 (a) (c) and (d) of the Act docs not create any criminal offence and, therefore, joining the remedy of this nature in a criminal complaint was not permissible. This amount to mixing up two jurisdictions which are distinct and different and which is bound to result in confusion and injustice. The relief u/s 3 of the Act is akin and on pari materia with the provisions of section 125 of the Code of Criminal Procedure. If proceedings u/s 125 Cr.P.C. cannot be tagged in a criminal case for the offence under the I.P.C., the course adopted by the learned Magistrate by joining a criminal complaint u/s 406/109 I.P.C. with relief sought u/s 3 of the Act will also not be permissible under the law. In reply, the learned counsel representing the non -applicant submitted that even u/s 3 of the Act on failure on the part of the husband to comply with the order passed by the Court, provision is made for keeping him in imprisonment for a term which may extend to one year or until payment is made whichever is earlier in sub -section (4) of section 3 of the Act and, therefore, the impugned order is not liable to be faulted on this ground.

(3.) ON limitation, applicants' argument is that when the non -applicant applied to the Court u/s. 3 of the Act in 1988, it has to be assumed that she was constrained to do so only on refusal on the part of applicant No. 3 to make payment claimed therein. The offence u/s 406 IPC is punishable with 3 years imprisonment of either description and/or fine. Section 468 of the Code of Criminal Procedure creates bar to taking cognizance of certain offences after lapse of the period of limitation. Under sub -section 2 (c) of section 468 ibid the period of limitation in case of section 406 I.P.C. will be 3 years. Therefore, computing the period since 1988, the presentation of the complaint out of which this revision has arisen on 24.10.92 was clearly beyond the period of prescribed limitation and the Court committed a grave illegality in taking cognizance of the offence notwithstanding the fact that the prior proceedings of 1988 though suppressed by the present non -applicant in her complaint were brought to the notice of the Court by the present petitioners. In reply, non -applicant's learned counsel submitted that under the Muslim Law and the said Act, there is no provision of limitation. Limitation will run only after service of a demand notice. Such a demand notice was served on 22.9.92 (Annexure -Z) and, therefore, time will start running from that date. Thus viewed the complaint is within time. Both the sides have cited Pratibharani v. Suraj Kumar and another (AIR 1985 SC 628) in this behalf. The submission is that Pratibharani's case (supra) was one under the Hindu Law as the parties were Hindus and, therefore, the observation made in para 10 therein as to the time when the husband and his relatives refused to return the articles of Stridhan will have no relevance to the present controversy of limitation. It cannot be said as conceded by non -applicant's counsel that time will start running only from the date of demand notice served by the non -applicant. There appears to be absolutely no justification to hold that the prior proceedings u/s 3 of the Act commenced in the year 1988 will have no implication so far as limitation is concerned. It is held that the limitation will start from 1988 after the filing of the petition and thus viewed the offence u/s 406 IPC so far as applicant 3 is concerned was hopelessly barred by time when the present petition was filed and the learned Magistrate committed an illegality by taking cognizance thereof ignoring the objections raised by applicant No. 3.