MOHAMMAD REYAZUDDIN KHAN Vs. SHAMA ASHRAFI

JUDGEMENT

(1.) ORDER :- This application under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code') is directed against order dated 4-9-1998 of Sri A. K. Verma, Judicial Magistrate, First Class, Dhanbad, in M. P. Case No. 140/92 dismissing an application of the petitioner presented before the magistrate under Section 127(3) of the Code.

(2.) The above mentioned proceeding under Section 125 of the Code had been commenced by the present opposite parties who are the wife and a minor son of the petitioner. By filing this application under Section 125 of the Code, they had sought maintenance from the petitioner on the ground that even though the petitioner had means to maintain them and they themselves were resourceless, he was neglecting to maintain them. The application was registered as M. P. Case No. 140/92. Though the petitioner appeared in the Court below, he failed to file any showcause or adduce evidence in rebuttal of the claim of the opposite parties. Consequently, the judicial magistrate before whom the application was made, directed the petitioner by his order dated 23-4-1993 to pay the opposite party No. 1 a sum of Rs. 300/- (three hundred) per month and to opposite party No. 2, Rs. 200/- (rupees two hundred) per month by way of maintenance from the date of the filing of the application on 16-9-1992. Against that order the petitioner approached the sessions Court invoking revisional jurisdiction. His revision application was registered as Cr. Revision No. 132 of 1993. After hearing the parties the learned VIth. Addl. Sessions Judge, Dhanbad dismissed the revision application by his order dated 5-2-1998. It was thereafter that the present petitioner purported to approach the judicial magistrate for cancellation of his order dated 23-4-1993 in accordance with the provision of clause (c) of Section 127(3) of the Code. That application was filed by petitioner on 16-4-1998. The opposite parties who were the applicants in the Court below, also approached the judicial magistrate for issuing process in accordance with the provision of Section 125(3) of the Code for realisation of the arrears of maintenance payable to them on the ground that nothing had been paid by the present petitioner. In his application under Section 127(3)(c) of the Code the petitioner took a stand that on 2-3-1994 itself with the intervention of the wellwishers of the parties there was a compromise between the parties and in terms of such compromise, he had returned the entire gifts and properties received at the timeof the marriage, to the wife (opposite party No. 1) and had also paid a sum of Rs. 3410/- in lieu of ornaments, besides Rs. 6000/- (rupees six thousand) as consideration for 'khula' (divorce obtained by wife). However, in their rejoinder, the opposite parties denied the allegation and stated that the story of such compromise is incorrect. On hearing both the parties the learned judicial magistrate rejected the application of the petitioner filed on 16-4-1998 by making the impugned order on the ground that even a divorced wife is entitled to receive maintenance from husband under the Muslim Personal Law; that order has been challenged in this application.

(3.) Mr. Satendra Singh, learned counsel appearing for the petitioner submitted that the judicial magistrate committed an error in rejecting the application of the petitioner without making any inquiry in respect of what the petitioner had alleged in the application about the compromise, albeit denied by the opposite parties. His contention is that in view of the provision of clause (c) of Section 127(3) of the Code, it was incumbent on the part of the judicial magistrate to allow the petitioner to prove his contention by adducing evidence and only if the learned magistrate found what the petitioner had stated is not correct that application was liable to be dismissed. Therefore, his submission is that the matter need be remitted to the judicial magistrate concerned for making appropriate order after giving the parties an opportunity of adducing evidence in support and rebuttal of the allegation of the petitioner.