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Divorced Muslim wife petition for maintenance under sec.125 Cr.P.C. is directed to be converted suo-moto by Magistrate and directed to decided the same under MWP ACT = i. That divorced muslim wife would be entitled to maintenance from her husband under section 125 of Criminal Procedure Code subject to provisions of MWP Act. ii. That law laid down by the Apex Court in Saha Bano’s case (Supra) [Mohammad Ahamad Khan Vs. Saha Bano Begam AIR1985 SC 945: (1985)2 SCC 556] has been analyzed and codified the same in Muslim Women (Protection of Rights on Divorce) Act 1986. iii. In Dainial Latifi’s case (Supra) The validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 has been upheld. iv. In view of provisions contained in section of 5 of MWP Act if the parties have exercised their option, the parties to be governed by provisions of Section 125 to 128 of Criminal Procedure Code, and not in accordance with the provisions contained in MWP Act. The application so given under MWP Act shall be disposed of in view of the provisions contained in Section 125-128 Cr.P.C. v. In section 125 the word ‘ Divorced women’ include muslim women, who has been married accord to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim Law. vi. That MWP Act will not apply to a muslim women whose marriage has been solemnized either under the Indian Special Marriage Act 1954 or a Muslim women whose marriage was dissolved either under Indian Divorce Act, 1969 or Indian Special Marriage Act, 1954. vii. When a petition is filed by divorced muslim women for her maintenance before a family court, section 7 of the Family Court Act, 1987 would be applied. In view of of section 20 of Family Courts Act 1984, the provisions of Family Courts Act shall have overriding effect over all other law for the time being in force including the provisions of MWP Act . Any suit or proceeding for maintenance filed before family Court by any women including muslim women be governed by provisions of Section 125 Cr.P.C, which is a common law applicable to all the women and thus Family Courts are competent to decide the application of muslim divorced women under section 125 Cr.P.C. viii. The court proceeding under section 125 Cr.P.C. if is of the opinion that the matter relates to reasonable and fair provision and maintenance to divorced muslim women it would be open to him to treat the application under MWP Act instead of rejecting the same because the proceeding under section 125 Cr.P.C. and claim made under MWP Act could be tried by one and the same court.
reported/published in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR High Court of judicature at Allahabad, Lucknow Bench, Lucknow District- Lucknow Writ Petition No. – 4909 (M/S) of 2008 Rafiquddin son of Raisul Zama, resident of Village and post Vaishpur, P.S.-Mandhata, District Pratapgarh. ………………… Petitioner Vs. 1. Kishwar Jehan, daughter of Sri Habibur … Continue reading
in cheque bounce case – High court confirmed the order of conviction and sentence of three months simple imprisonment and to pay compensation of Rs.5 lakhs, however, the High Court was of opinion that no separate sentence could be awarded in default of payment of compensation when substantive sentence of imprisonment is independently awarded. The High Court, therefore, set aside the sentence in default of payment of compensation. Being aggrieved by the said order of conviction and sentence, the accused has approached this court by way of Special Leave Petition (Crl.) No.2299 of 2012. The complainant has filed Special Leave Petition No.3327 of 2012 being aggrieved by the order of the High Court to the extent it sets aside the order of sentence in default of payment of compensation. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357 (3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the IPC. It is obvious that in view of this, in Vijayan, this court stated that the above mentioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default. 19. In view of the above, we find no illegality in the order passed by the learned Magistrate and confirmed by the Sessions Court in awarding sentence in default of payment of compensation. The High Court was in error in setting aside the sentence imposed in default of payment of compensation. We set aside the impugned order of the High Court to the extent it quashes the sentence in default of payment of compensation. We restore the order passed by learned Magistrate dated 16/4/2004 awarding two months simple imprisonment in default of payment of compensation of Rs.5 lakhs under Section 357(3) of the Code. We grant two months’ time to the accused to pay the said amount of compensation to the complainant from the date of receipt of this order.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.883 OF 2012 [Arising out of Special Leave Petition (Crl.) No.2299 of 2012] R. MOHAN … APPELLANT Vs. A.K. VIJAYA KUMAR … RESPONDENT AND CRIMINAL APPEAL NO.884 OF 2012 [Arising out of Special Leave Petition (Crl.) No.3327 of 2012] A.K. VIJAYA KUMAR … … Continue reading
apex court held yes= court means any court of civil and criminal. award means any compromise decree is called as decree as per legal services authority act= The question posed for consideration is that when a criminal case filed under Section 138 of the Negotiable Instruments Act, 1881 referred to by the Magistrate Court to Lok Adalat is settled by the parties and an award is passed recording the settlement, can it be considered as a decree of a civil court and thus executable?
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10209 OF 2011 (Arising out of SLP (C) No.2798 of 2010) K.N. Govindan Kutty Menon …. Appellant (s) Versus C.D. Shaji …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) This appeal raises an … Continue reading
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