THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL PETITION No.3908 of 2007 Date:05.08.2010 Between: Smt Butoolunnisa Beguam and three others. ……..Petitioners/accused. And The State of A.P. rep by the Public Prosecutor, High Court of AP., Hyderabad and another. ……Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL PETITION No.3908 of 2007 ORDER: This criminal petition has been taken out by the accused in C.C.No.716 of 2006 on the file of VIII Additional Chief Metropolitan Magistrate, City Criminal Court, Hyderabad under Section 482 Cr.P.C with a prayer to quash the proceedings therein. Back ground facts, in a nutshell, leading to filing of this Criminal Petition by the accused are:- The 2nd respondent-Mirza Agha Hussain married the 1st petitioner-Smt. Butoolunnisa Begum on 15.8.1997. They were blessed with four children out of wedlock. Thereafter, the husband filed a complaint before VIII Additional Chief Metropolitan Magistrate, Hyderabad against the petitioners herein alleging that the 1st petitioner had gone for second marriage during subsistence of her marriage with him. Petitioners 2 & 3 are figured as witnesses for the second marriage of the 1st petitioner with one Syed Alamdar Hussain Najmi. The marriage was officiated by petitioner No.4. According to the husband, the “Qula Certificate” pressed into service by the 1st petitioner herein is not in accordance with the principles of Mahomedan Law. Para Nos.7 & 8 of the complaint filed by the husband and they are thus:- “That if Qula is not done by mutual consent then there is another remedy for a wife to appear before a competent court and file a Suit for Dissolution of marriage showing that the whereabouts of her husband for four years are not known. But Accused No.1, did not file any Suit for Dissolution of Marriage in the court and directly colluding with other accused got issued a Qula Certificate in her favour. Moreover the Birth Certificate of the fourth child clearly shows and establish that the complainant was very much present in city and residing in his own house. Both Accused No.1 and Accused No.4, with the connivance of Accused No.2 & 3, got a false Qula Certificate issued in favour of Accused No.1 and she in turn married a third person on the basis of Qula Certificate which is also a penal offence. As per Mahomedan Law the Qula Certificate is illegal and Accused No.1, is still the wife of complainant and she can not marry second time during the life time of complainant without obtaining Qula or Divorce from the complainant legally, and the subsequent marriage of Accused No.1 is a void marriage performed during the subsisting of first marriage with the complainant. The Qula Certificate obtained by her by playing fraud and obtained in the absence of complainant on wrong and baseless ground by owning over the other accused who joined hands to help Accused No.1. Moreover, it is very clear that both Accused No.2 & 3 have signed on the second marriage as witnesses as accused No.4, who has issued Qula Certificate wrongly has also performed the second marriage of Accused No.1, with a third person knowingly that the subsequent marriage is a void marriage.” The learned Magistrate recorded sworn statement of the complainant-husband and took cognizance of the offences under Sections 494 and 109 IPC and issued summons. Hence this quash petition by the accused in C.C.No.716 of 2006 on the file of VIII Additional Chief Metropolitan Magistrate, City Criminal Court, Hyderabad. Heard learned counsel appearing for the petitioners and learned Public Prosecutor appearing for the respondent-State. Learned counsel appearing for the petitioners submits that the very act of the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad in taking cognizance of the offence under Sections 494 and 109 IPC is not in accordance with the provisions of Mahomedan Law, and, therefore, the proceedings in C.C.No.716 of 2006 are liable to be quashed. A further submission has been made that if the complainant has any grievance with regard to divorce by Qula, he has to approach the Civil Court for cancellation of the same. I have gone through the complaint presented by the 2nd respondent before VIII Additional Chief Metropolitan Magistrate, Hyderabad. It is the case of the complainant that the 1st petitioner herein, without obtaining divorce, proceeded to go for second marriage with Syed Alamdar Hussain Najmi and that marriage has been witnessed by the petitioners 2 & 3 and officiated by petitioner No.4. Under Section 319 of the Mahomedan Law, Qula Divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. The complainant has specifically averred that there is no acceptance from his side for offer made by the 1st petitioner-wife. Prima facie, it cannot be said that the marital life between the petitioner and the complainant came to be snapped by Qula Divorce. Therefore, this is not a fit case to quash the proceedings by invoking inherent jurisdiction under Section 482 of the Criminal Procedure Code. Accordingly, the Criminal Petition fails, and it is hereby dismissed. _________________________________ JUSTICE B. SESHASAYANA REDDY Date:05.8.2010 mrb