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Jammu & Kashmir High Court

Liaqat Ali vs . Naseem Akhter on 12 April, 2019

Equivalent citations: AIRONLINE 2019 J AND K 141

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

             HIGH COURT OF JAMMU & KASHMIR
                       AT JAMMU

CRR No. 19/2019, IA No. 01/2019
                                                 Date of order: 12.04.2019
Liaqat Ali                            Vs.                   Naseem Akhter
Coram:

      Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For petitioner (s)        : Mr. K. K. Razdan, Advocate
For respondent(s)       :

 i)   Whether approved for reporting in              Yes/No
      Law Journals etc.:
ii)   Whether approved for publication
      in Press:                                      Yes/No

1. The petitioner has filed the present criminal revision against order dated 22.01.2019 passed by learned Sub-Judge (JMIC), Nowshera by virtue of which the learned Magistrate has allowed the application under Section 488 Cr.P.C. and has granted Rs.2,500/- per month as interim maintenance to the respondent.

2. The brief facts of the present case are that the parties to this petition got married on 12.03.2009 in pursuance to the Nikah performed in accordance with Islam, however, Rukhsati was done on 09.12.2009. Within a couple of days, the respondent left her matrimonial home and unfortunately the respondent was observed of having illicit relation with one Ravinder Singh resident of Nowshera even prior to her marriage. This fact was noticed by even the relations from her own side and in order to camouflage the immoral act of the respondent, an FIR under Section 376RPC was lodged against the above referred person, namely, Ravinder Singh; that the petitioner was shocked by the act of the respondent. However, in pursuance CRR No. 19/2019 Page 1 of 6 and intervention of the relations of both sides, petitioner showed magnanimity in accepting her again, but the respondent was not ready to mend her behavior; that the respondent became habitual of leaving the company of the petitioner without intimation so the petitioner was forced to lodge the missing report against her and in pursuance thereto the respondent was recovered from Punjab along with above referred person, namely, Ravinder Singh; That the petitioner again with a hope that good sense may prevail upon the respondent, tried to persuade the respondent to perform her matrimonial obligations, but could not succeed in modifying the behavior of the respondent, as such, the petitioner compelled by the immoral conduct of the respondent to divorce her through a written divorce deed which was sent to her through registered post and is deemed to have been delivered to the respondent; that besides this the respondent was charged and tried for the commission of offence under Section 307 RPC, alleging that the respondent along with other accused persons tried to cause death of her brother's wife (Bhabi); that the overall conduct of the respondent became beyond the tolerance and therefore, the petitioner divorced her through the above referred divorce deed;

that after the above referred divorce, the relation between petitioner and respondent ceased to be as husband and wife, as such, respondent was not competent to maintain the petition under Section 488 Cr.P.C; that the Court below was apprised of all the facts and the position of law by the petitioner herein, but the court below seems to have passed the order impugned in haste manner which has resulted in grave miscarriage of justice.

3. The petitioner challenges the order dated 22.01.2019, on the following grounds:

"(a) that in view of the settled proposition of law laid down by this Hon'ble Court vide its Division Bench Judgment titled Amad Giri V/S Mst. Begha" AIR 1955 JKI, it has been observed by this Hon'ble Court that after pronouncement of the Talak in bidet form as well in Byan form the relation between the husband and wife comes to an end and the wife no longer remains wife under the definition of Cr.Р.С. for the purpose of maintenance;

(b) that after cessation of the relations as husband and wife after pronouncement of the Talak in Bidet form therespondent at the most has been held to been titled only to the amount required for his sustenance during the Iddat period;

(c) that the order impugned has resulted in grave miscarriage of justice, as such, deserves to be set aside;

(d) that the order impugned is against the law and against the personal law governing the petitioner. Having a vested fundamental right with regard to faith, religion etc. the petitioner is governed by Islamic lawand it is settled proposition of law that the Talakin Bidet form comes into force as soon as pronounced, hence from the execution of the divorced deed through which the respondent was divorced through Talak-ul-Bidet is not competent to maintain petition under Section488 Cr.Р.С. as such, the order impugned being against the personal law governing the petitioner deserve to be set aside."

4. I have considered the contention of counsel for petitioner. From the bare perusal of documents annexed in this petition, it is evident that respondent filed a petition under section 488 Cr.P.C. before JMIC Nowshera. Along with main petition an application for interim petition was also filed. The petitioner herein appeared and filed objections and taken same grounds which has been taken in this petition. Court below after considering the facts of case granted interim maintenance to the tune of Rs. 2,500/- pm.

5. The operative part of the order impugned dated 22.01.2019 passed by learned Sub-Judge (JMIC), Nowshera, reads as under:-

"Heard the learned counsel for the parties and perused the record and evidence, come on record. The core issue is to CRR No. 19/2019 Page 3 of 6 whether the petitioner is a still wife of the respondent are not as the respondent has taken the stand that petitioner has been divorce by him and also placed on record the deed of divorce. The further issue/point which required the consideration of this court is that to assertion the validity of said deed of divorce. Since both of parties have led their evidence in support of their case as such the matter is to be decided finally after having regard the entire evidence came on record as well as law on the subject. At this stage it is not appropriate to return finding on merit with regard to the aforementioned issues/point which are to be decided after hearing the final arguments on both the sides. As discussed above that this Court is under command by the order dated 21.12.2018 passed by Hon'ble High Court to decide atleast the application for grant of interim maintenance within ten days and at the same time it is settled position of law that Court may take care for interim arrangement/maintenance in favour of wife till final disposal of the petition taking into consideration that the lady/wife should not come on road for begging. It is otherwise social as well as moral responsibility of the husband to maintain his wife. However, as discussed above that these issues/points with regard to the fact that petitioner is still to be treated as wife of the respondent or not yet to be decided in the main petition and this court having regard to above stated facts and circumstances purposed to decide/dispose of the interim application with the direction to respondent to pay Rs. 2500/ per month as interim maintenance to petitioner from the date of passing of this order till final disposal of the main petition.

I order accordingly.

This interim application is disposed of accordingly and made part of the main file and, accordingly, attached with the file."

6. I have given my thoughtful consideration to whole aspects of the matter.

7. Section 488 Cr.P.C reads as under: -

" 488. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain.

(a) his wife , unable to maintain herself, or

(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself, or.

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or.

(d) His father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such CRR No. 19/2019 Page 4 of 6 neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding two thousand rupees in the whole, as such magistrate thinks fit and to pay the same to such person as the magistrate may from time to time direct.

Provided that the magistrate may order the father of a minor female child referred to in clause (b) to make such allowances, until she attains her majority, if the magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means."

8. Section 488 Cr.P.C. is a social legislation, strict law of pleading is not applicable. Procedure is of summary nature; purpose of interim relief is that petitioner may survive up to final adjudication of petition U/s 488 Cr. PC, which takes long time to finalize. Maintenance is right which accrues to a wife against husband the moment former gets married to latter. It is not only a moral obligation but also a legal duty. The primary object for granting interim maintenance to a deserted and destitute wife is for ensuring that wife should not be left beggared. The remedy provided U/s 488 Cr. PC is a summary remedy for securing reasonable sum by way of interim maintenance. Further purpose of granting interim maintenance is that applicant should be alive till the date of final order.

9. In the present case, petitioner herein admitted that respondent is his wedded wife, but has taken plea that he has divorced her and same has been communicated to her. All these points taken are subject to judicial adjudication, which stage has not yet come because parties are yet to produce their evidence. Further, from bare perusal of photocopy of Divorce deed dated 30.01.2013, it is evident that the said deed is based upon triple Talaq, which has already been declared un-constitutional by constitution bench of apex court in Shayara Bano Vs. Union of India And Ors. reported in 2017 (9) SCC 1 (Writ Petition (C) No. 118 of 2016 and connected petitions) decided on 22 August, 2017.

Further, in AIR 1986 SUPREME COURT 984 case titled Smt. Savitri Vs. Govind Singh Rawat, it is held as under :-

"Criminal P.C. (2 of 1974), S.125 - Proceedings under - Interim maintenance pending final disposal can be granted.

Having regard to the nature of the jurisdiction exercised by a Magistrate under S.125, the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to pending final disposal of the application. AIR 1975 SC 83, Relied on. (Para

6) The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable.

(Para 6)."

10. In view of what has been discussed above and law narrated in above citation, I am of the view that by passing interim order of maintenance of Rs.2,500/- per month to respondent, the trial court has not exceeded its jurisdiction. Present petition is devoid of any merits. Hence, it is dismissed.

( Sanjay Kumar Gupta ) Judge Jammu:

12.04.2019 Bir* NARINDER KUMAR SHARMA 2019.04.12 14:28 I attest to the accuracy and integrity of this document CRR No. 19/2019 Page 6 of 6