Jaidabai Vs. Mohammad Shafi Mohammad Ismile and anr.

Jaidabai vs Mohammad Shafi Mohammad Ismile and anr.

Type Court Judgment Court Mumbai Decided Oct 20, 1989

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Citation: sooperkanoon.com/358996
Court: Mumbai High Court
Judge: W.M. Sambre, J.
Decided On: Oct 20, 1989
Case Number: Crl. Rev. Application No. 31 of 1989
Subject: Family;Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of ...

Key legal issue: Family;Criminal
Acts & sections: Code of Criminal Procedure (CrPC) , 1973 - Sections 125; Muslims Women (Protection of Rights) Act, 1987

Parties & Advocates

Appellant / Petitioner

Jaidabai

Advocate B.A. Udhoji and ;C.S. Kaptan, Advs.

Respondent

Mohammad Shafi Mohammad Ismile and anr.

Advocate A.J. Khan, Adv. for the Non-Applicant No. 1 and ;G. Choube, A.G.P. for the Non-Applicant No. 2

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1973 - Sections 125; Muslims Women (Protection of Rights) Act, 1987
Reported In: II(1990)DMC14

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........after the expiry of the iddat period i.e. lunar period of three months, this will have the effect. in this maintenance case, it has been observed that the written statement came to be filed wherein it has been stated that the wife has already been divorced. therefore, it is held that from the date of the statement and after the expiry of three months lunar period as iddat period till that period the applicant is entitled for the maintenance. even on the basis of the judgment cited above i.e. : air1961 bom121 , the applicant was entitled for the maintenance till the filing of the statement in the court by the non-applicant no. 1 husband and thereafter for a period of three months, which has been denied to the applicant-wife. as such this judgment of the learned sessions judge is in fact liable to be quashed and that of the learned judicial magistrate is liable to be restored with restrictions that the applicant is entitled for the maintenance from the date of application till the date of iddat period. the statement came to be filed in january, 1987. thereafter she will be entitled for maintenance till the end of april, 1987. thereafter the muslims women (protection of rights) act, 1987 will come into operation and this applicant will have to approach the appropriate authority for grant of the maintenance after this period.5. with the above observations and directions, the instant criminal revision application stands disposed of.

Full Judgment

W.M. Sambre, J.

1. Aggrieved by the Judgment and order passed by the learned Sessions Judge, Buldaua in Criminal Revision Application No. 119 of 87 allowing the revision application and quashing the order passed by the learned Judicial Magistrate, First Class, Mehkar in Misc. Criminal Cage No. 70 of 86 granting maintenance to the applicant wife at the rate of Rs. 150/- per month, the applicant-wife has filed this application alleging that the order passed by the Sessions Judge is liable to be quashed and set aside.

2. The main contention of the applicant-wife is that the order of the Sessions Judge even on the basis of the Judgment cited i.e. : AIR1961 Bom121 is prima facie wrong. She has further contended that the order of the learned Magistrate granting alimony at the rate of Rs. 150/-per month is liable to be sustained.

3. It is pertinent to note that the learned Magistrate has granted maintenance at the rate of Rs. 150/- per month to the applicant-wife which was challenged in revision before the Sessions Judge and the learned Sessions Judge has come to the conclusion that the applicant-wife was divorced under Mohamodan Law by the non-applicant No. 1 husband and on this count this revision came to be allowed which is under challenge under this criminal revision.

4. It will be seen from the Judgment of the Bombay High Court which specifically states that in case, if divorce is given and the statement made to that effect in the written statement, then Court will presume that the divorce is granted to the party from the date of the statement filed in the Court and after the expiry of the Iddat period i.e. lunar period of three months, this will have the effect. In this maintenance case, it has been observed that the written statement came to be filed wherein it has been stated that the wife has already been divorced. Therefore, it is held that from the date of the statement and after the expiry of three months lunar period as Iddat period till that period the applicant is entitled for the maintenance. Even on the basis of the Judgment cited above i.e. : AIR1961 Bom121 , the applicant was entitled for the maintenance till the filing of the statement in the Court by the non-applicant No. 1 husband and thereafter for a period of three months, which has been denied to the applicant-wife. As such this Judgment of the learned Sessions Judge is in fact liable to be quashed and that of the learned Judicial Magistrate is liable to be restored with restrictions that the applicant is entitled for the maintenance from the date of application till the date of Iddat period. The statement came to be filed in January, 1987. Thereafter she will be entitled for maintenance till the end of April, 1987. Thereafter the Muslims Women (Protection of Rights) Act, 1987 will come into operation and this applicant will have to approach the appropriate authority for grant of the maintenance after this period.

5. With the above observations and directions, the instant criminal revision application stands disposed of.

Same Court & Year Mumbai · 1989 Same Parties Jaidabai vs Mohammad Shafi Mohammad Ismile and anr. Same Subject Family;Criminal Same Judge W.M. Sambre, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1973 - Sections 125; Musl...

Family;Criminal