In my humble view those cases would have no application to the present case because in the present case, there was no Judgment on merits. The matter was settled between and Joint Pursis (Exh. 20) was filed on the basis of which the application under Section 125 of the Code of Criminal Procedure was disposed of. Though an order by consent does not operate as res judicata, such order is binding upon the parties thereto. A Judgment by consent or otherwise is as effective as estoppel between the parties as a Judgment whereby the Court exercises its mind on a contested case. Thus, an order of compromise creates an estoppel by judgment.
The respondent moved application under Section 125 of the Code of Criminal Procedure in the year 1997. By the said application, the respondent claimed maintenance allowance of Rs. 500/- per month. The said application was withdrawn by the respondent by joint pursis dated 17th September, 1999 which shows that the respondent (wife) has received articles of Jahej as per the list submitted and also amount of Mehar of Rs. 15000/-. In view of the settlement, the respondent was not intertested in prosecuting the case for grant of maintenance. The respondent, however, moved application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) in the year 2001 for reasonable and fair provision of Rs. 250000/- and maintenance of Rs. 15000/- for Iddat period. In view of the joint pursis dated 17th July, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under Section 125 of the Code of Criminal Procedure created an estoppel against the respondent to move application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Courts below committed an error in entertaining and allowing the application of the respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). In the circumstances of the case, the respondent's application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is nothing but an abuse of the process of the Court which necessitates invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure.
1. By this petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash and set aside common judgment dated 31st December, 2003 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 233/2002 and 258/2002 and judgment dated 1st October, 2002, passed by Judicial Magistrate, First Class, Court No. 5, Amravati in Misc. Criminal Application No. 18/2002.
2. The petitioner is serving as Senior Clerk in Maharashtra State Road Transport Corporation, Amravati. He owns a house and agricultural land. He is having grown up children from his first wife. After the death of his first wife, the petitioner married the respondent on 27th January, 1995. The respondent is M. A. B. Ed. and was serving as a part-time teacher. The petitioner and the respondent could not pull on well and on 11th September, 1996 the petitioner divorced the respondent. After the divorce, he married third wife.
3. The respondent filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure against the petitioner bearing Misc. Criminal Case No. 87/ 97 on the ground of desertion. The said application was disposed of for want of prosecution in view of the joint pursis dated 17th July, 1999 filed by both the parties. By said pursis, the parties informed the Court that the respondent (wife) received the articles of Jahej as per list submitted and also the amount of Mehar of Rs. 15000/- and as such the respondent (wife) was not interested in prosecuting the application for grant of maintenance.
4. The things did not rest there. The respondent (wife) filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) for reasonable and fair provision of Rs. 25000/-, maintenance of Rs. 15000/- for Iddat period and return of remaining articles of Jahej worth Rs. 50000/-.
5. The petitioner (former husband) opposed the application. According to him the respondent had already received Jahej articles as well as the amount of Mehar as per the settlement arrived at between them. According to the petitioner (former husband) it is for the Wakf Board to make reasonable and fair provision and for maintenance of the respondent (wife) who is a divorcee. Hence, the petitioner (former husband) is not liable to pay maintenance to the respondent.
6. The learned Magistrate rejected the respondents' claim for Jahej articles and maintenance for Iddat period and allowed the respondents' claim for reasonable and fair provision to the extent of Rs. 100000/-, Both the parties challenged the said order by preferring separate revision application under Section 397 of the Code of Criminal Procedure. The Revisional Court confirmed the order passed by the learned Magistrate, Hence, this petition.
7. I have heard Shri B.M. Khan, Advocate for the petitioner (Former husband). None appeared for the respondent (wife) though served.
8. Shri B.M. Khan submitted that the earlier application viz. Misc. Crl. Case No. 87/ 97 under Section 125 of the Code of Criminal Procedure was withdrawn by the respondent because of settlement. In view of the said withdrawal, the present application viz. Misc. Crl. Case No. 18/2001 under Section 3 of Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is barred by the principles of res judicata. In support of this submission Shri B.M. Khan relied on the following cases:
i) Daryao v. State of U.P.
ii) State of U.P. v. Nawab Husain
iii) Sarguja Transport Service v. State Transport Appellate (Tribunal M.P., Gwalior)
iv) Suresh Sakharam Chaugule v. Patel Cotton Press Factory
v) Shyam Lal v. Ch. Charan Singh Haryana Agrl. University 1999 AIR SCW 4931 : 1999 S C C (L&S) 1073
9. I have gone through these cases. They relate to the principle of res judicata and some of them have considered as to whether the said principle applies to the petitions under Article 32 and 226 of Constitution of India.
10. In my humble view those cases would have no application to the present case because in the present case, there was no Judgment on merits. The matter was settled between and Joint Pursis (Exh. 20) was filed on the basis of which the application under Section 125 of the Code of Criminal Procedure was disposed of. Though an order by consent does not operate as res judicata, such order is binding upon the parties thereto. A Judgment by consent or otherwise is as effective as estoppel between the parties as a Judgment whereby the Court exercises its mind on a contested case. Thus, an order of compromise creates an estoppel by judgment.
11. It may be noted that the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) came into operation on 29th May, 1986. The respondent moved application under Section 125 of the Code of Criminal Procedure in the year 1997. By the said application, the respondent claimed maintenance allowance of Rs. 500/- per month. The said application was withdrawn by the respondent by joint pursis dated 17th September, 1999 which shows that the respondent (wife) has received articles of Jahej as per the list submitted and also amount of Mehar of Rs. 15000/-. In view of the settlement, the respondent was not intertested in prosecuting the case for grant of maintenance. The respondent, however, moved application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) in the year 2001 for reasonable and fair provision of Rs. 250000/- and maintenance of Rs. 15000/- for Iddat period. In view of the joint pursis dated 17th July, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under Section 125 of the Code of Criminal Procedure created an estoppel against the respondent to move application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Courts below committed an error in entertaining and allowing the application of the respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). In the circumstances of the case, the respondent's application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is nothing but an abuse of the process of the Court which necessitates invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. The orders passed by both the Courts below are without jurisdiction and cannot be sustained. Hence, the order.
ORDER
1. The petition is allowed.
2. The judgment dated 31st December, 2003 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision Nos. 233/2002 and 258/2002 so also the judgment dated 1st October, 2002 passed by Judicial Magistrate, First Class, Court No. 5, Amravati in Misc. Criminal Application No. 18/2001 are hereby set aside.
3. Miscellaneous Criminal Application No. 18/2001 filed by the respondent against the petitioner stands dismissed.
4. No order as to costs.
5. Rule is made absolute.
The respondent moved application under Section 125 of the Code of Criminal Procedure in the year 1997. By the said application, the respondent claimed maintenance allowance of Rs. 500/- per month. The said application was withdrawn by the respondent by joint pursis dated 17th September, 1999 which shows that the respondent (wife) has received articles of Jahej as per the list submitted and also amount of Mehar of Rs. 15000/-. In view of the settlement, the respondent was not intertested in prosecuting the case for grant of maintenance. The respondent, however, moved application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) in the year 2001 for reasonable and fair provision of Rs. 250000/- and maintenance of Rs. 15000/- for Iddat period. In view of the joint pursis dated 17th July, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under Section 125 of the Code of Criminal Procedure created an estoppel against the respondent to move application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Courts below committed an error in entertaining and allowing the application of the respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). In the circumstances of the case, the respondent's application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is nothing but an abuse of the process of the Court which necessitates invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure.
Bombay High Court
Sayeed Khan Faujdar Khan vs Zaheba Begum on 9 September, 2005
Equivalent citations: AIR 2006 Bom 39, II (2006) DMC 294
Bench: K Rohee
1. By this petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash and set aside common judgment dated 31st December, 2003 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 233/2002 and 258/2002 and judgment dated 1st October, 2002, passed by Judicial Magistrate, First Class, Court No. 5, Amravati in Misc. Criminal Application No. 18/2002.
2. The petitioner is serving as Senior Clerk in Maharashtra State Road Transport Corporation, Amravati. He owns a house and agricultural land. He is having grown up children from his first wife. After the death of his first wife, the petitioner married the respondent on 27th January, 1995. The respondent is M. A. B. Ed. and was serving as a part-time teacher. The petitioner and the respondent could not pull on well and on 11th September, 1996 the petitioner divorced the respondent. After the divorce, he married third wife.
3. The respondent filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure against the petitioner bearing Misc. Criminal Case No. 87/ 97 on the ground of desertion. The said application was disposed of for want of prosecution in view of the joint pursis dated 17th July, 1999 filed by both the parties. By said pursis, the parties informed the Court that the respondent (wife) received the articles of Jahej as per list submitted and also the amount of Mehar of Rs. 15000/- and as such the respondent (wife) was not interested in prosecuting the application for grant of maintenance.
4. The things did not rest there. The respondent (wife) filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) for reasonable and fair provision of Rs. 25000/-, maintenance of Rs. 15000/- for Iddat period and return of remaining articles of Jahej worth Rs. 50000/-.
5. The petitioner (former husband) opposed the application. According to him the respondent had already received Jahej articles as well as the amount of Mehar as per the settlement arrived at between them. According to the petitioner (former husband) it is for the Wakf Board to make reasonable and fair provision and for maintenance of the respondent (wife) who is a divorcee. Hence, the petitioner (former husband) is not liable to pay maintenance to the respondent.
6. The learned Magistrate rejected the respondents' claim for Jahej articles and maintenance for Iddat period and allowed the respondents' claim for reasonable and fair provision to the extent of Rs. 100000/-, Both the parties challenged the said order by preferring separate revision application under Section 397 of the Code of Criminal Procedure. The Revisional Court confirmed the order passed by the learned Magistrate, Hence, this petition.
7. I have heard Shri B.M. Khan, Advocate for the petitioner (Former husband). None appeared for the respondent (wife) though served.
8. Shri B.M. Khan submitted that the earlier application viz. Misc. Crl. Case No. 87/ 97 under Section 125 of the Code of Criminal Procedure was withdrawn by the respondent because of settlement. In view of the said withdrawal, the present application viz. Misc. Crl. Case No. 18/2001 under Section 3 of Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is barred by the principles of res judicata. In support of this submission Shri B.M. Khan relied on the following cases:
i) Daryao v. State of U.P.
ii) State of U.P. v. Nawab Husain
iii) Sarguja Transport Service v. State Transport Appellate (Tribunal M.P., Gwalior)
iv) Suresh Sakharam Chaugule v. Patel Cotton Press Factory
v) Shyam Lal v. Ch. Charan Singh Haryana Agrl. University 1999 AIR SCW 4931 : 1999 S C C (L&S) 1073
9. I have gone through these cases. They relate to the principle of res judicata and some of them have considered as to whether the said principle applies to the petitions under Article 32 and 226 of Constitution of India.
10. In my humble view those cases would have no application to the present case because in the present case, there was no Judgment on merits. The matter was settled between and Joint Pursis (Exh. 20) was filed on the basis of which the application under Section 125 of the Code of Criminal Procedure was disposed of. Though an order by consent does not operate as res judicata, such order is binding upon the parties thereto. A Judgment by consent or otherwise is as effective as estoppel between the parties as a Judgment whereby the Court exercises its mind on a contested case. Thus, an order of compromise creates an estoppel by judgment.
11. It may be noted that the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) came into operation on 29th May, 1986. The respondent moved application under Section 125 of the Code of Criminal Procedure in the year 1997. By the said application, the respondent claimed maintenance allowance of Rs. 500/- per month. The said application was withdrawn by the respondent by joint pursis dated 17th September, 1999 which shows that the respondent (wife) has received articles of Jahej as per the list submitted and also amount of Mehar of Rs. 15000/-. In view of the settlement, the respondent was not intertested in prosecuting the case for grant of maintenance. The respondent, however, moved application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) in the year 2001 for reasonable and fair provision of Rs. 250000/- and maintenance of Rs. 15000/- for Iddat period. In view of the joint pursis dated 17th July, 1999, the settlement arrived at between the petitioner (former husband) and the respondent (wife), which resulted in withdrawal of the application under Section 125 of the Code of Criminal Procedure created an estoppel against the respondent to move application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). The Courts below committed an error in entertaining and allowing the application of the respondent under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986). In the circumstances of the case, the respondent's application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) is nothing but an abuse of the process of the Court which necessitates invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. The orders passed by both the Courts below are without jurisdiction and cannot be sustained. Hence, the order.
ORDER
1. The petition is allowed.
2. The judgment dated 31st December, 2003 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision Nos. 233/2002 and 258/2002 so also the judgment dated 1st October, 2002 passed by Judicial Magistrate, First Class, Court No. 5, Amravati in Misc. Criminal Application No. 18/2001 are hereby set aside.
3. Miscellaneous Criminal Application No. 18/2001 filed by the respondent against the petitioner stands dismissed.
4. No order as to costs.
5. Rule is made absolute.
No comments:
Post a Comment