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Smt. Jahan Ara vs State Of U.P. And Another on 26 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 41

Case :- CRIMINAL REVISION No. – 864 of 2000

Revisionist :- Smt. Jahan Ara

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Javed Habib

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Mrs. Sunita Agarwal,J.

Criminal Misc. Delay Condonation Application No. 01 of 2019

Criminal Misc. Substitution Application No. 02 of 2019

The delay in filing the substitution application has been explained to the satisfaction of the Court. The delay in filing the substitution is condoned.

The substitution application application has been filed to substitute the applicant in place of revisionist who has died on 16.07.2008.

It is contended that deponent is father of the revisionist and there is no other heirs and legal representatives who may pursue the present revision.

The delay condonation and substitution applications are allowed.

Office shall make necessary incorporation within two days.

Order Date :- 26.11.2019

Himanshu

Court No. – 41

Case :- CRIMINAL REVISION No. – 864 of 2000

Revisionist :- Smt. Jahan Ara

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Javed Habib

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Mrs. Sunita Agarwal,J.

The revisionist seeks to challenge the order dated 22.02.2000 passed by the Principal Judge, Family Court, Moradabad in a proceeding under Section 3 of the Muslim Women (Protection of Rights on SectionDivorce) Act’ 1986 whereby the court below though held the revisionist entitled to ‘Mehar’ and maintenance for the Iddat period but has refused to direct the opposite parties to return the dowry given to the opposite party in the wedding held on 18.12.1992.

Submission of learned counsel for the revisionist is that a list of items gifted as dowry to the opposite parties was duly produced before the family court. The said list was duly certified and contained signature of the ex-husband of the revisionist. However, the court below had discarded the said list only on the premises that signature of Sahzad (husband of the revisionist) in the checklist differs from the signatures in the Nikhanama.

It is contended that the said approach of the court below in refusing to direct to return of dowry is nothing but an illegality which amounts to wrong exercise of jurisdiction conferred on it.

It is further pointed out that the original list of dowry items was filed before the criminal court in a proceeding under Section 406 IPC and the said fact was admitted to the opposite party. In view of the said admitted fact, it was not open for the family court to reject the whole list raising doubt about its correctness or genuineness.

Considering the said submission, it is found that in a dispute between the parties, the original list was deposited before the criminal court. In case of any doubt about the correctness of the list before the family court, appropriate course of action was to get the certified copy of the list filed in the criminal court which was admitted to both the parties.

Instead of adopting the proper course to decide the controversy between the parties, the court below has illegally brushed aside the entire demand of return of dowry items by discarding the list as a whole.

This approach of the court below, in the opinion of this Court is, nothing but wrongful exercise of jurisdiction vested in it. The judgment and order dated 22.02.2000 passed by the Principal Judge, Family Court, Moradabad in Criminal Misc. Case No. 68 of 1998 is, thus, found suffering from material illegality and procedural impropriety, to the above extent.

While setting aside the judgment and order dated 22.02.2000 passed in Case No.68 of 1998 in part, the matter is relegated to the Family Court, Moradabad for fresh consideration on the issue noted above.

The Court below shall grant due opportunity of hearing to all the contesting parties before taking a final decision.

Subject to the above observations, the revision is allowed in part.

Certify the judgment to the court below immediately.

The original record be sent back to the court below through a special messenger within a period of one week from today.

Order Date :- 26.11.2019

Himanshu

 

 

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