RSA No.437 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.437 of 2010 (O&M) Date of decision: 5.7.2010 Mohd. Imran Khan ......Appellant(s) Versus Smt. Aina alias Mumtaz ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sudhir Aggarwal, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration claiming that he had already divorced the respondent on 20.6.2003 and there exists no relation of husband and wife and further declaring illegal the order dated 29.10.2005 granting maintenance under Section 125 Cr.P.C to the respondent, was dismissed. In brief, as per the averments made in the suit, the appellant had married with respondent according to Muslim rites. The aforesaid marriage broke down due to disrespect shown by the respondent to him and he divorced her on 20.6.2003 as per the Muslim law. However, the Judicial Magistrate, 1st Class, Nuh without appreciating the aforesaid fact of divorce, granted maintenance to the respondent under Section 125 of the Cr.P.C. vide order dated 29.10.2005. According to the appellant, the aforesaid order was illegal and was liable to be set aside because the said order was not sustainable, as after the divorce, there existed no relationship of husband and wife between the parties. Upon notice, the defendant failed to appear in the suit and was proceeded against ex parte. Thereafter, the plaintiff led ex parte evidence. RSA No.437 of 2010 (O&M) 2 However, on appreciation of evidence and considering the arguments raised, the trial Court vide its judgment and decree dated 7.4.2008 held that the suit for declaration to the effect that the order passed by the Judicial Magistrate, 1st Class, Nuh under Section 125 Cr.P.C was not maintainable. It was also found by the trial Court that the Civil Court was not an Appellate Court to decide as to whether the order dated 29.10.2005 passed by the Judicial Magistrate, 1st Class, Nuh, granting the maintenance was illegal or not. Appeal filed by the plaintiff against the aforesaid judgment and decree dated 7.4.2008 of the trial Court was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 11.11.2009. Still not satisfied, the present appeal has been filed by the appellant challenging the aforesaid judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the findings of the criminal Court have no bearing on the Civil Court or in civil proceedings as the Civil Court may take cognizance on the facts and law as applicable in the civil suit in the present case. It is further argued that the order dated 29.10.2005 passed in proceedings under Section 125 Cr.P.C was not binding on the Civil Court and the learned Courts below have not appreciated the fact that the appellant had legally divorced the respondent under the Muslim law and thus, in this view of the matter, the impugned judgment and decrees of the Courts below are liable to be set aside and the following substantial questions of law arise in this appeal: “(i) Whether it is necessary for a Muslim to divorce his wife in her presence? (ii) Whether the appellant is not right in divorcing the respondent when the reconciliation was failed twice? (iii) Whether the Civil Court has not jurisdiction to RSA No.437 of 2010 (O&M) 3 declare an order u/s 125 Cr.P.C as illegal specifically wen the same was passed after divorce? (iv) Whether the learned Courts below have misread, misinterpreted and misconstrued the evidence led by the appellant?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. There is no dispute with the argument raised by the learned counsel for the appellant that the proceedings in the criminal Court have no bearing on the proceedings in the Civil Court. However, in the present case instead of challenging the order dated 29.10.2005 passed under Section 125 Cr.P.C in a Court of competent jurisdiction by filing an appeal or revision as provided under the Criminal Procedure Code, the present suit has been filed to declare the same as illegal. Learned counsel for the appellant was unable to substantiate as to how the present suit was maintainable challenging the aforesaid order. Moreover, the Courts below have recorded a finding of fact that the appellant had failed to prove the divorce. Thus, in view of the aforesaid findings, I find no merit in this appeal. No substantial question of law, as argued, arises in this appeal. Dismissed. July 5, 2010 (RAKESH KUMAR GARG) ps JUDGE