Nissar Ahmad Matoo vs Ulfat on 5 February, 2021

[Cites 13, Cited by 2]

Jammu & Kashmir High Court - Srinagar Bench

Nissar Ahmad Matoo vs Ulfat on 5 February, 2021

1. This quashment petition filed by the petitioner in terms of Section 482 Cr.P.C. is directed against order dated 31.01.2020 passed by the learned Additional District and Sessions Judge, Srinagar (the Revisional Court) in file No.06/2019 titled Mst. Ulfat v. Nissar Ahmad Matoo, whereby the Revisional Court has set aside the order of Special Mobile Magistrate (Sub Judge), Srinagar dated 29.07.2019 passed in a petition filed by the respondent along with her two children for maintenance under Section 488 Cr.P.C., insofar as it rejects the claim of the respondent for maintenance. 2

2. Material facts, as projected by the petitioner in this petition, insofar as these are necessary for determination of the controversy raised, may be noticed briefly.

3. As is claimed, the petitioner and respondent entered into marital tie in the year 2005 according to the Muslim Personal Law and out of their wedlock, twin female issues were born. It is stated that prior to his marriage with the respondent, the petitioner had married one Shabeena in the year 1992, who left for her heavenly abode in the year 1997 due to illness. Out of the aforesaid wedlock also there are two issues, namely, Nazida Nissar and Aaqib Nissar. Both are now major and putting up with the petitioner. The marriage of the petitioner with respondent was, thus, petitioner's second marriage, contracted after the death of his first wife. The petitioner claims that right from the marriage with the respondent, he had been taking best care of the respondent and the children born out of the wedlock, but the treatment of the respondent towards the petitioner was all along unbecoming of a wife. The conciliation efforts made by the petitioner through the intervention of respectable persons known to the families wore no fruits. When all the attempts of conciliation failed, the petitioner was forced to take an unpleasant decision to pronounce divorce against the respondent. It is the stated case of the petitioner that he executed a divorce deed on 06.07.2019 and communicated the same to the respondent through registered post. Annoyed by the communication of divorce by the petitioner, the respondent filed a complaint under Section 12 of the J&K Protection of Women from Domestic Violence Act ('D.V.Act'). The trial Magistrate passed an interim order directing the petitioner to pay interim maintenance of Rs. 4000/- each 3 in favour of minor daughters vide order dated 14.07.2018. The petitioner responded to the complaint and filed his detailed objections. The petitioner also moved an application in terms of Section 20 of the D.V.Act seeking modification/cancellation of order dated 14.07.2018. In the meanwhile, the respondent also filed an application under Section 25(2) of the D.V. Act. Both the applications were considered by the trial Magistrate, who vide its order dated 28.08.2019 dismissed the application filed by the petitioner and made the interim order dated 14.07.219 absolute. However, application filed by the respondent under Section 20 of the D.V. Act was allowed and the respondent was granted Rs.5,000/- monthly interim maintenance. The petitioner has challenged order dated 28.08.2019 by way of an appeal, which was assigned to the Court of 3rd Additional District and Sessions Judge, Srinagar. The appellate Court has upheld the order of the trial Magistrate and dismissed the appeal filed by the petitioner vide its order dated 30.09.2019. The order dated 30.09.2019 passed by the appellate Court is subject matter of challenge in a separate quashment petition pending adjudication before this Court.

4. While the quashment petition against order dated 30.09.2019 was pending adjudication before this Court, the respondent filed an application in terms of Section 488 Cr.P.C. before the Court of Special Mobile Magistrate, Srinagar (the 'trial Court'). An interim order was passed by the trial Court on 29.07.2019 directing the petitioner to pay an amount of Rs.3,000/- each to the children and rejected the claim of the respondent for maintenance on the ground that she has been legally divorced by the petitioner. Feeling aggrieved, the respondent preferred a revision petition 4 before the Revisional Court, which accepted the revision petition vide its order dated 31.01.2020 and held the respondent also entitled to monthly maintenance of Rs.5,000/-. It is this order of the Revisional Court, which is assailed by the petitioner in this petition on the below mentioned grounds:-

i) That the learned Revisional Court has not appreciated the fact that in view of the divorce between the parties, the respondent was not entitled to any maintenance under Section 488 Cr.P.C.

ii) That while granting interim maintenance of Rs.5,000/- in favour of the respondent, the Revisional Court did not take into consideration that the respondent was already getting maintenance of Rs.5,000/- per month under Section 20 of the D.V. Act and, therefore, was not entitled to same amount twice over.

iii) That the amount awarded by way of interim maintenance by the Revisional Court is exorbitant and has been granted without taking note of the fact that apart from two children out of the marriage between the petitioner and the respondent, the petitioner has two more major children of the previous marriage to take care of.

5. Having heard learned counsel for the parties and perused the record, the case on hand calls for determination primarily of three questions viz.

i) Whether the plea of divorce taken by the husband by way of defense in a petition under Section 488 Cr.P.C. (125 of Central Cr.P.C) can be considered at the time of making an order of interim maintenance in favour of wife?

ii) Whether the proceedings under Section 488 Cr.P.C. (125 of Central Cr.P.C.) and Section 20 of the D.V.Act are two 5 independent provisions entitling the aggrieved party to invoke both or either of them?

iii) Whether the maintenance granted under one provision can be taken note of, adjusted or set off while granting the same under other provision?

6. The facts in the instant case are not disputed. The petitioner and respondent are legally wedded husband and wife. It is, however, the claim of the petitioner that he has divorced the respondent by executing a divorce deed and communicating the same to the respondent. The divorce claims to have been pronounced/communicated by the petitioner is disputed by the respondent.

7. Be that as it may, the relations between the parties are bitter and the two are living separately. The respondent besides herself has two more souls (minor children) to support and take care of. It is also not in dispute that the respondent is a house maker and does not have any independent income to sustain herself and her two children. She, in the first instance, invoked the provisions of the J&K Protection of Women from Domestic Violence Act and filed a petition under Section 12 thereof. Alongside, the respondent also moved an application for grant of monetary relief under Section 20 of the D.V.Act. The trial Magistrate vide its order dated 28.08.2019 held the respondent entitled to a monthly monetary relief of Rs.5,000/- till the disposal of main application under Section 12 of the D.V.Act. This order was challenged by the petitioner before the 3 rd Additional District and Sessions Judge, Srinagar, who vide its order dated 30.09.2019 upheld the order passed by the trial Magistrate. This Order passed by the 3rd Additional District and Sessions Judge, Srinagar is stated to 6 be subject matter of adjudication in a separate quasment petition filed by the petitioner in this Court.

8. While the aforesaid order was in operation and the respondent had been granted an interim monetary relief of Rs.5,000/- per month, the Sub Judge/Special Mobile Magistrate, (Srinagar) ('the trial Court') in an application filed by the respondent under Section 488 Cr.P.C. passed an order of interim maintenance on 29.07.2019. The trial Court held the minor children of the parties entitled to an interim maintenance of Rs.3,000/- each. The respondent, however, was not found entitled to interim maintenance until the fact of divorce alleged by the petitioner was disproved by the respondent by leading evidence. The respondent assailed this order of the trial Court before the Additional District and Sessions Judge, Srinagar ('Revisional Court') by way of a revision petition. The Revisional Court accepted the revision petition and held the respondent entitled to interim maintenance of Rs.5,000/- per month in terms of its order dated 31.01.2020. It is this order, which is impugned, in this petition on the grounds herein above taken note of.

9. From a perusal of the impugned order dated 30.01.2020, it clearly transpires that the Revisional Court has not taken into consideration the factum of respondent having been granted a similar monetary relief of Rs.5,000/- per month under Section 20 of the D.V.Act. The Revisional Court, however, has not agreed with the trial Court that the respondent would not be entitled to any maintenance interim or otherwise until she disproves the plea of divorce put forth by the petitioner-husband. 7

10. The Revisional Court has concluded that there is a presumption with regard to subsistence of marriage and the one who alleges divorce must prove it. The Revisional Court is also correct in its view that grant of interim relief cannot be deferred until the issue of divorce is adjudicated in the petition under Section 488 Cr.P.C. (125 of the Central Cr.P.C.).

11. In the backdrop of narrated facts, the issues that have arisen in this petition need to be determined.

ISSUE No.(I)

12. From a bare reading of Section 488 Cr.P.C., which is in pari materia with Section 125 of the Central Code of Criminal Procedure, it clearly transpires that the provision is intended to provide a quick remedy to provide succour to the destitute wife and abandoned minor children. Proceedings before the Magistrate are summary in nature and the complicated disputed questions like the factum of marriage or divorce cannot be made subject matter of adjudication in these proceedings.

13. The nature and scope of the proceedings under Section 125 of the Central Code of Criminal Procedure, 1973, was considered at some length by the Supreme Court in the case of Savitri v. Govind Singh Rawat, (1985) 4 SCC 337. In a recent judgment in the case of Rajnesh v. Neha and another, Cr. Appeal No.730 of 2020 passed on 04.11.2020, the Supreme Court considered extensively the provisions of Section 125 of the Central Code of Criminal Procedure and the parallel provisions in the Hindu Marriage Act and the D.V.Act. Hon'ble the Supreme Court in one of the paragraph of the judgment has held thus:-

"The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court / family court in an appropriate proceeding, such as the Hindu Marriage Act, 1956."

14. The Supreme Court even went to the extent of holding that the presumption of marriage arises even when the parties are in a live-in relationship for a long period of time and strict proof of marriage should not be a pre-condition for grant of maintenance under Section 125 Cr.P.C. The law presumes in favour of marriage and, therefore, strong proof is required to rebut such presumption by a person, who alleges divorce. To the similar effect is the view taken by a Bench of this Court in the case of Mushtaq Ahmad Badyari v. Ruquya Akhter, CRMC No.41/2018 decided on 12.11.2020. A Coordinate Bench of this Court in the aforesaid case has held thus:-

"Thus, merely taking a plea of divorce in the objections by the petitioner before the court below by narrating that he has sent the divorce deed to his wife through registered post and the same stands received by the wife would not disentitle the wife to get interim maintenance."

15. Viewed thus, it is axiomatic that merely putting forth the plea of divorce by the husband would not be sufficient to deny interim maintenance to the wife under Section 125 Cr.P.C. As observed above and reiterated herein that there is presumption of subsistence of marriage and the onus is on the person, who alleges divorce, to prove cessation of the marital ties. Otherwise also, proceedings under Section 125 Cr.P.C. are summary in 9 nature and complicated disputed questions are not required to be gone into. At the stage of grant of interim maintenance, the Magistrate shall simply ignore the plea of divorce, however, while considering the application under Section 125 Cr.P.C. finally, it may take note of prima facie evidence on record with regard to subsistence or otherwise of the marriage between the parties. For final determination the Magistrate shall leave the parties to seek adjudication before the Civil Court, which is well equipped to determine such complicated disputed questions of title or status.

16. In view of the aforesaid, the answer to question No.(i) is simple and categoric that the husband by merely taking the plea of divorce in a petition under Section 125 Cr.P.C. cannot be absolved of its responsibility to maintain his wife and minor children.

Issue Nos. (ii) & (iii)

17. These issues have been elaborately discussed by the Supreme Court in the case of Rajnesh (supra) under the heading "Directions on overlapping jurisdiction".

"It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding."

18. It is, thus, clear that the Supreme Court while holding that maintenance awarded under Section 20(1)(d) of the D.V.Act could be in addition to an order of maintenance made under Section 125 Cr.P.C., also 10 provided that while considering an application under Section 12 of the D.V. Act, the Court would take into consideration the order of maintenance passed under Section 125 Cr.P.C. or any other law for the time being in force and vice versa.

19. It is, thus, axiomatic that while moving the concerned forum under Section 125 Cr.P.C. and under Section 12 read with Section 20 of the D.V. Act simultaneously or one after the other may be legally permissible but the parties granted maintenance under one provision is legally obliged to disclose such fact to the subsequent forum.

20. It is equally well settled that the Court while granting interim maintenance under Section 125 Cr.P.C. to the wife or children shall also take into account the similar maintenance, if any, granted to the aggrieved party under the D.V.Act or some other provision for the time being in force for grant of maintenance to the destitute wife and the children and the position is equally true vice versa.

21. In the instant case, indisputably, the Revisional Court while passing the impugned order and directing payment of monthly maintenance of Rs.5,000/- to the respondent did not take into account the maintenance of Rs.5,000/- already granted in favour of the respondent by the trial Magistrate in proceeding under Section 20 of D.V.Act.

This answers the question Nos. (ii) and (iii).

22. In view of the aforesaid discussion, I am inclined to accept the plea of the petitioner that the impugned order passed by the Revisional Court is not sustainable in law and has resulted in serious miscarriage of justice. The petition is, thus, allowed and the impugned order passed by the 11 Revisional Court dated 31.01.2020 is set aside and the matter is remitted back to the Revisional Court to reconsider the whole issue in light of the observations made herein above and pass fresh orders after hearing both the parties.

CRM(M) No.253/2019

1. In view of the discussion made above and also for the reason given, this Court does not find any illegality or infirmity in the impugned order passed by the learned Magistrate as well as the Appellate Court. Otherwise also, the order passed by the learned trial Magistrate dated 28.08.2019, as upheld by the 3rd Additional District and Sessions Judge, Srinagar vide its order dated 30.09.2019 only grants an interim maintenance in favour of the respondent till the final disposal of the main petition filed by the respondent under Section 12 of the D.V.Act.

2. That being the position, the petitioner shall have ample opportunity to project his defense before the learned trial Magistrate and persuade it to take a view in consonance with his defense.

3. The petitioner is a man of means and, therefore, it is well within his pecuniary limits to pay adequate maintenance for the sustenance of his wife and children. Whether or not there exists any domestic relationship between the parties? whether or not the respondent is an aggrieved person as defined under Section 2 of the D.V.Act? are all questions of fact, to be determined by the Court in a petition under Section 12 of the D.V.Act. It is sufficient for the trial Magistrate to make a prima facie view of the matter and grant immediate interim relief to the respondent and her minor children. No interference in such a well reasoned order is called for. 12

14. The petition is, therefore, without any merit and is, accordingly dismissed alongwith connected applications.

(Sanjeev Kumar) Judge SRINAGAR 05.02.2021 Vinod Whether this order is speaking : Yes Whether this order is reportable: Yes VINOD KUMAR 2021.02.05 14:53 I attest to the accuracy and integrity of this document

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Jammu & Kashmir High Court - Srinagar Bench