CRIMINAL REVISION No. - 3306 of 2023 Revisionist :- Mohd. Javed Khan & Anr. v. Mohd. Javed Khan)

Heard Mr. Abrar Ahmad, the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and Mr. Chaudhary N.A. Khan, learned senior counsel assisted by Mr. Irfan Raza Khan, the learned counsel representing opposite party 2. Perused the record. This criminal revision has been filed challenging the order dated 21.04.2011, passed by Additional Principal Judge, Family Court, Allahabad in Case No.287 of 2007 (Smt. Sarwat Afroz Vs. Mohd. Javed Khan), under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 (herein- after shall be referred as 'Act of 1986), whereby court below has directed the revisionist to pay a sum of Rs.6,77,051/- to opposite party 2 within a period of one month, failing which opposite party 2 shall be entitled to get the said amount recovered through court and also the order dated 03.05.2023, passed by Additional Principal Judge, Family Court No.5, Allahabad in Misc. Case No.16 of 2022 (Mohd. Javed Khan Vs. Smt. Sarwat Afroz), whereby the delay condonation application under Section 5 of the Limitation Act filed in support of recall/restoration application, has been rejected. Learned counsel for revisionist contends that the order impugned in present criminal revision is manifestly illegal and, therefore, liable to be set aside by this Court. He submits that it is an undisputed fact that the order dated 21.04.2011 is ex-parte against the revisionist. Referring to the judgement of Supreme Court in Ramji Dass and others Vs. Mohan Singh, 1978 ARC 496 (Civil Appeal No.509 of 1978, decided on 24.02.1978), he contends that a judgement after hearing the parties is far far better than a judgement ex-parte. Furthermore, the delay in filing the recall application was sufficiently explained. In view of above, the court below ought to have allowed the delay condonation application and, consequently, condoned the delay in filing the recall/restoration application. The view taken to the contrary by the court below is manifestly illegal. It is next contended by the learned counsel for revisionist that court below had no jurisdiction to entertain a petition under Section 3 of the 'Act of 1986'. In support of aforesaid submission, he has relied upon the following judgements of this Court : Israr Beg Vs. Shahnaz Begum (First Appeal No. (70) of 1991), decided on August 12, 1994; Anjum Hasan Siddiqi Vs. Salma B, 1992 LawSuit (All) 942; and Mohd. Nadim Vs. Smt. Taliya Fatima @ Shama Parveen (Civil Misc. Writ Petition No.12408 of 2010), decided on July 06, 2010. On the above premise he, therefore, contends that since the initial order dated 21.04.2011 is manifestly illegal and without jurisdiction, the court below ought to have condoned the delay in filing the recall/restoration application and thereafter recalled the order dated 21.04.2011. Per contra, the learned A.G.A. for State-opposite party 1 and the learned senior counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that by virtue of the provisions contained in Rule 6 of The Uttar Pradesh Family Courts (Court) Rules, 2006, court below has jurisdiction to entertain the petition under Section 3 of the 'Act of 1986'. For ready reference, Section 6 of The Uttar Pradesh Family Courts (Court) Rules, 2006 is reproduced herein-under :- "6. The petition m ay be filed before the Court as permitted under any law whish also includes provisions contained in the following laws : (i) Chapter IX of the Criminal procedure Code, 1973 (2 of 1974); (ii) Hindu Marriage Act, 1955 (25 of 1955); (iii) Maintenance under Hindu Adoptions and Maintenance Act, 1956 (78 of 1956); (iv) Guardianship of the persons or custody of or access to any minor under the Hindu Minority and Guardianship Act, 1956 (32 of 1956); (v) Dowry Prohibition Act, 1961 (28 of 1961) for an order of injunction in circumstances arising out of marital relationship; (vi) Hindu Marriage (Validation of Proceedings) Act, 1960 (19 of 1960); (vii) Personal law applicable to Muslims including-- (a) Muslim Personal (Shariat) Application Act, 1937 (26 of 1937); (b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939); (c) Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986); (viii) Parsi Marriages and Divorce Act, 1936 (3 of 1936) which can be instituted or taken out before the Parsi District Matrimonial Courts constituted under sections 18 and 20 of the said Act; (ix) Indian Christian Marriage Act, 1872 (15 of 1872); (x) Indian Divorce Act, 1945; (xi) Special Marriage Act, 1954 (43 of 1954); (xii) Child Marriage Restraint Act, 1929 (19 of 1929); (xiii) Anand Marriage Act, 1909 (7 of 1909); xiv) Arya Marriage Validation Act, 1937 (19 of 1937); (xv) Foreign Marriage Act, 1969 (33 of 1969); (xvi) Suits or proceedings relating to Part B States Marriages Validating Act, 1952 (1 of 1952); (xvii) Guardians and Wards Act, 1890 (8 of 1890)." On the above conspectus, they therefore submit that the order impugned dated 21.04.2011 is perfectly just and legal. It is next contended by the learned senior counsel representing opposite party 2 that recall application against the order dated 21.04.2011 was filed almost after eleven years. As such, the same was hopelessly barred by limitation. He has then taken the court to the affidavit filed in support of delay condonation application, copy of which is on record at page 27 of the paper book. With reference to above, he contends that the cause shown by the revisionist for explaining the delay in filing the recall/restoration application was neither sufficient nor truthful. It is further submitted by the learned senior counsel that the court should not be liberal in condoning the delay, but that would not mean that delay should be condoned as a matter of course. As such, no illegality has been committed by the court below in passing the orders impugned. They, therefore, contend that present criminal revision is liable to be dismissed by this Court. When confronted with above, the learned counsel for revisionist could not overcome the same. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1, the learned counsel representing opposite party 2 and upon perusal of record this Court finds that the objections raised by the learned A.G.A. and the learned counsel representing opposite party 2 in opposition to this criminal revision could not be dislodged by the learned counsel for revisionist with reference to the record. Admittedly, the opposite party 2 is the legally wedded wife of revisionist. As such, the revisionist is legally and morally bound to maintain her. In the absence of legal bar with the opposite party to claim Mehar from her husband, no illegality has been committed by court below in directing return of the same. Even otherwise, upon perusal of the order impugned this Court finds that court below while passing the order impugned has neither committed a jurisdictional error nor the court below has exercised it's jurisdiction with material irregularity so as to vitiate the order impugned warranting interference by this Court. In view of above, the present criminal revision fails and is liable to be dismissed. It is accordingly dismissed. Order Date :- 13.5.2024. Rks.