SK HAMID KHAN Vs. JUMMI BI

JUDGEMENT

(1.) THE applicant has moved this application under section 482 of the Code of Criminal Procedure, 1973, for quashing the order of maintenance granted by the Courts below in favour of the non-applicant.

(2.) THE facts not in dispute are that the applicant married the non-applicant in the year 1962 but in March 1968 the applicant gave Talak and the maniage was dissolved. Thereafter the applicant remarried one Mst. Samora bi. The non-applicant then filed Misc. Criminal Case No. 138/ (968 claiming maintenance from the applicant but her claim was rejected on 28-7-1969 on the ground that no maintenance can be granted as the marriage has been dissolved. The order was affirmed by the Additional Sessions Judge in Criminal revision No. 55/1969 decided on 3-3-1970. The non-applicant then filed civil Suit No. 24-B/1970 claiming Mehar amounting to Rs. 1,100 which she alleged was the amount settled at the time of marriage. The suit was dismissed on 30-1-1974 holding that it was a Khoola Talak and the applicant gave divorce after the non-applicant relinquished her claim of dower against him. The judgment was affirmed in Civil Appeal No. 7-B/71, decided on 30-8-1974 by additional District Judge. The non-applicant has now claimed maintenance under section 125 of the new Code at the rate of Rs. 100 per month stating that the applicant is doing business in rice and he is earning about Rs. 700 per month. The applicant contested the application on several grounds, the main objection seems to be that since there was a Khoola Talak between the parties and the non-applicant had relinquished her claim for Mehar, she is not entitled for any maintenance in view of section 127 (3) (b) of the new Code. The learned trial Magistrate granted maintenance at the rate of Rs. 100 per month and overruled the objections of the applicant. He held that section 127 (3) (b)is not attracted because the applicant never paid the amount of dower but the non-applicant had relinquished her claim for dower. This provision can only be applied for cancellation of the maintenance already granted after the dower is paid. As admittedly no dower was paid, the non-applicant can pursue her claim for maintenance. The learned Sessions Judge in revision affirmed the order of the trial Magistrate. He was of the view that as it was an oral Khoola Talak and as it has not been shown as to what were the terms and conditions under which the Talak was given, it has to be presumed that the non-applicant had relinquished her claim for dower but she is still entitled to maintenance during the period of iddat.

(3.) THE non applicant raised a preliminary objection that present application under section 482 cannot be entertained inasmuch as a second revision is barred under section 397 (3) of the new Code and section 482 cannot be invoked to override the express provisions in the Code and by entertaining this application the very purpose of section 397 (3) will be defeated. It is true that a second revision does not lie in view of section 591 (3) and the applicant having preferred a revision before the Sessions Judge, a further revision is barred and normally in such circumstances section 482 of the Code should not be invoked in order to override the express bar. However, section 482 of the code provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to prevent abuse of the process of any court or otherwise to secure the ends of justice. Therefore, if it is shown that any patent illegal order has been passed then it will be open to this Court to quash such an order even if no further revision can be entertained by this court. Under section 482 this Court has ample power to rectify ar,y error in order to prevent abuse of the process of any Court or to secure the ends of justice.