Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS NO.27613 OF 2011 =================================================== GULFASHA BANO W/O MD. AASIF DOKHTAR D/O MD. NIZAMUDDIN R/O VILL. SARSAWA, P.S. CHAUTHAM, DISTT. KHAGARIA. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR. 2.MD. JUBAIR @ JUBAIR AHMAD S/O MEHDI HUSAIN R/O MOHALLA - MOHARAMPUR, P.O. BAGHAILI, P.S. JADIA, DISTT. SUPAUL. 3.MD. ABDUL RAHMAN @ ABDUL RAHMAN S/O MD. SAKUR R/O MOHALLA - MOHARAMPUR, P.O. BAGHAILI, P.S. JADIA, DISTT. SUPAUL. 4.MASUDA KHATOON @ MASUDA W/O MD. JUBAIR R/O MOHALLA - MOHARAMPUR, P.O. BAGHAILI, P.S. JADIA, DISTT. SUPAUL. 5.PINKI KHATOON W/O ABDUL RAHMAN R/O MOHALLA MOHARAMPUR.P.O. BAGHAILI, P.S. JADIA, DISTT. SUPAUL. .... .... OPPOSITE PARTY/S ================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 6/ 17-04-2013 Heard learned counsel for the parties. In this application the petitioner wife, who was opposite party in the earlier case, Cr.Misc.No. 28385/2007, has sought modification in the order dated 4.9.2009 passed in Cr.Misc.No. 28385/2007. On 4.9.2009 this Court had passed the following order: “ Heard counsel for the parties. Reference may be made to the earlier order of this Court dated 17.8.2009. Pursuant thereto, both the petitioner no.1 and his son (husband) have appeared in person.
Legal Reasoning
Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 2 The opposite party no.2, wife, however has not appeared on account of some personal problem but both the husband and opposite party no.2 are being represented by their respective
Legal Reasoning
learned counsels. All said and done, now it becomes apparent that the wife-opposite party no.2, out of frustration or any other reason, does not want to continue her life with the son of the petitioner no.1 and therefore, has got it conveyed through her counsel that she would be more happy if their relationship of man and wife is given decent burial by way of mutual divorce. The husband, the son of the petitioner no.1, who personally present, has also is no objection though he had shown his inclination to restore the conjugal life with the opposite party no.2. Considering all these aspects of the matter, this becomes clear that the real bone of contention in the matrimonial dispute is the personal differences between the husband i.e. son of the petitioner no.1 and the wife opposite party no.2 and the petitioners of this case have little role to play in such dispute. Consequently, their prosecution for the offence alleged would be a sheer abuse of the process of the Court. In that view of the matter, this Court would give a period of three months time to the opposite party no.2 Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 3 to move for divorce before the Imarat-e- Shariat for divorce and in that event, the opposite party no.2 will not move for such divorce, liberty is also given to the son of the petitioner no.1 to move for such divorce. Of course, such divorce will be given as per the personal law requiring the husband to pay the amount of Dan-Mohar and the amount of the period of Iddat. Once the divorce is granted by Imarat-e-Shariat, which must be given in view of the mutual consent of both the parties, the order of Imarat-e-Shariat granting such divorce will be produced before the court below and thereafter, the entire proceedings with regard to the petitioners and other accused persons before the court below shall stand closed. With the aforementioned observations and directions, this application is disposed for. It goes without saying that till such order of divorce of Imarat-e-Shariat is produced by either of the parties before the court below, no coercive step would be taken against the petitioners.” the For modification seeking in aforementioned order the following pleas were taken in this application: “5. That the petitioner on 17.1.2010 as for direction filed an application before Imarat Sharia Phulwarisharif, Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 4 Bihar, Orissa and Jharkhand, Phulwarisharif, Patna vide case No. 300/1986 1/143, applying for dissolution of marriage and also asking for return of the dowry as well as cash of 50 thousand and motorcycle given to her husband and the time of marriage. 6. That it is also further stated that an application on 6.4.2010 the husband of the petitioner filed an application before Emarat-e-Shariat, Phulwarisharif, Bihar, Orissa and Jharkhand accepting that the list of articles given to him at the time of marriage as provided was correct it has also been accepted by him that indition to the articles given to him. He had also given T.Vs Motorcycle and cash. But the husband of the petitioner as refused to return the said articles under gone the petitioner false dowry case for which he had to spend Rs.3 lacs as litigation cost therefore if the petitioner pay give him Rs.3 lacs which he had spend on litigation then only he will return article as well cash during the time of marriage. 7. That it is humbly submitted for your lordships kind consideration that it is absolutely petitioner’s husband is no intention of returning the false the articles, cash, motorcycle given to him at the time of marriage neither has in any intention of honouring the order dated 4.9.2009 passed in Cr.Misc.No. 28385 of 2007. Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 5 8. That it is also further stated that even the mehar amount as well as expenses of Eddat has not been paid to the petitioner. 9. That it is further stated that this amount and articles, motorcycle are admitted amount which should be given to the petitioner by the petitioner’s husband that the present petition is being filed for the modification of the order with regard to the amount, articles and motorcycle with should given by the petitioner’s husband to the petitioner.” After the parties had appeared in this case and were heard on 5.9.20912 the following order was passed on that day: “ Heard counsel for the parties. After some initial objection raised by learned counsel for the opposite party he submits that he would make his efforts to persuade the husband opposite party to pay the amount covering the price of TVS Motorcycle as also Rs. 50,000/- in cash which was admittedly received by him from the family members of the petitioner at the time his marriage which has also been acknowledged by him in his petition filed on 6.4.2010, in the following words:- Emarat-e-sharia before ^^ eSA eqnkfy;k eks0 vkflQ gkbZ dksVZ ds gqDe ds eksrkfcd ryk[k nsus egj dh jde ekscfyax ,dkou gtkj :i;s vnk djus vkSj bn~nr [kpZ vnk djus ij veknk o rS;kj gwWA eqnS;k xqyQlk ckuks us lkeku tgst dh tks fQjhLr nk:y dtk esa nkf[ky dh gSA og lgh o nq:Lr gS lkeku tgst ds vykok eq>s eksVjlkbZfdy Vh0Hkh0,l0 vkSj udn jde ekscfyax ipkl gtkj :iS;s Hkh eq>s feyk gSA** This Court would appreciate such gesture of the opposite party keeping in view that the earlier order dated 4.9.2009 in Cr.Misc.No. 28385 of 2005 Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 6 was passed with a view to settle all dispute between the parties for once and all and thus if a TVS Motorcycle and Rs.50,000/- was given to the opposite party and his family members for solemnizing the marriage of the petitioner in the year 2005 and if the marriage has no longer subsisted the opposite party would be morally bound to return the aforesaid amount to the petitioner a weaker person who after her divorce will be left to fend herself with limited means. Put up this case after four weeks under the same heading on the top of the list in order to enable the opposite party to produce a bank draft covering the aforesaid amount.” When the case had appeared on list on 7.11.2012 counsel for the opposite parties has produced a Bank draft of Rs.20,000/- in the name of the petitioner and had also submitted that the rest of the amount of Rs.30,000/- towards the balance of cash of Rs.50,000/- and the price of TVS Moped being Rs.10,000/- would be paid to the petitioner in the 2nd Week of January, 2013. Eventually the case was placed today and the parties have been heard. Pursuant to the order of this Court dated 07.11.2012, learned counsel for the opposite parties has produced the bank draft of Rs. 40,000/- dated 22.01.2013 towards the payment of the balance amount of Rs. 50,000/- in terms Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 7 of the order dated 05.09.2012. Learned counsel for the petitioner while accepting the aforementioned amount towards the full and final settlement of his claim in terms of the order dated 05.09.2012 has expressed apprehension that there are only five days left in the validity period of the bank draft, inasmuch as, the life of such bank draft only remains for a period of three months and its validity would expire on 21.04.2013. Counsel for the opposite parties has assured that if the petitioner deposits the bank draft in the Bank and if for any reason the same is not honoured due to expiry of the period of the bank draft, they would be under an obligation to replace it within the period of 15 days when the petitioner would return the bank draft to the opposite parties. That being so, this application is
Decision
disposed of with a direction to the Court below to drop the proceedings once the amount of Rs. 40,000/- being tendered today is paid to the petitioner by the Bank. The opposite parties having obtained the proof of payment of such amount to the petitioner will file an application for closing the proceedings and the Court below after being satisfied of receipt of Patna High Court Cr.Misc. No.27613 of 2011 (6) dt.17-04-2013 8 payment of Rs.40,000/- shall close the proceedings. With the aforementioned observations and directions, this application is disposed of. ‘Ranjan (Mihir Kumar Jha, J)