TRIPURA BOARD OF WAKF Vs. TAHERA KHATOON

JUDGEMENT

(1.) This is an application under Article 226/227 of the Constitution of India praying for quashing the order dated 23-12-1997 passed by the learned Judicial Magistrate, 1st Class, Sonamura, in Misc. Case No. 15/97, and for quashing the order dated 28-1-2000 in Misc. Case No. 10/98, and the distress warrant dated 28-1-2000 issued by the Sub-Divisional Judicial Magistrate, Sonamura.

(2.) The facts briefly are that the respondetn is a Muslim divorced woman. She filed an application for maintenance against her husband under Section 125, Cr. P. C which was registered as Misc. Case No.5/96 and was ultimately disposed of with the observation that the respondent being a muslim divorced woman can file a petition under the Muslim Women (Protection of Rights on Divorce) Act, 1986. (for short, "the Act, 1986"). Thereafter, the respondent filed such a petition which was numbered Misc. Case No. 15/97. In the said petition, the husband of the respondent was impleaded as opposite party No.1, the Assistant Commissioner, Sub-Divisional Wakf Committee, (Wakf Board), Sonapur (hereinafter referred to as "the Assistant Commissioner, Wakf Committee") as opposite party No.2, and the mother of the respondent was impleaded as opposite party No.3. By order dated 23-12-1997, the learned Magistrate disposed of the said Misc. Case with, inter alia, the following observations :

(3.) Mr UB Saha, learned senior counsel appearing for the petitioners, submitted that it will be clear from sub-section (2) of Section 4 of the Act, 1986, that only where a divorced woman is unable to maintain herself and she has no relative as mentioned in sub-section (1) of Section 4 or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the proviso to sub-section (1) of Section 4, the Magistrate may,by order direct the State Wakf Board to pay such maintenance as determined by him under sub-section (1) of Section 4 or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as may be specified in the order. In the present case, no finding has been recorded by the Magistrate as to whether the relatives of the respondent have not enough means to pay the maintenance nor any maintenance amount determined by the Magistrate. Mr Saha further submitted that all that the Magistrate recorded in the impugned order dated 23-12-1997 was that the Assistant Commissioner, Wakf Committee, was bound by the said order, and would act as per the Act. 1986. According to Mr Saha, the Assistant Commissioner, Wakf Committee or the Wakf Board would be bound by the provisions of Act, 1986 and in particular under sub-section (2) of Section 4 thereof if the Magistrate recorded a clear finding that the respondent could not be maintained by her relatives, and until the Magistrate fixes the amount of maintenance, the Wakf Committee or Board should be held liable to pay the maintenance to the respondents. Mr Saha further submitted that it would be clear from the said order that one of the witnesses, namely, PW-3 who was examined by the Magistrate was the brother of the respondent and therefore the Magistrate should have considered as to whether the said PW-3 was in a position to maintain the respondent. He further argued that in the subsequent order dated 28-1-2000 in Misc. Case No.10/98 by which the Magistrate rejected the prayer of the petitioner for review of the order dated 18-11-99, the Magistrate has made a mention that the respondent had filed a petition under Section 127.Cr. P.C. for enforcement of the order dated 23-12-1997. According to Mr Saha, since the proceeding under Sections 125 and 127, Cr.P.C, were not applicable to a Muslim divorced woman, the order of the Magistrate was without jurisdiction and are nullities