Jammu & Kashmir High Court
Smt. Zubaida Akhtar & Anr. vs Sh. Tariq Mehmood Bhat on 25 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: 561-A Cr.P.C. No.05/2016 & MP No.1/2016
Date of order:- 25.08.2017
Smt. Zubaida Akhtar & anr. Vs. Sh. Tariq Mehmood Bhat
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s): Mr. R. K. S. Thakur, Advocate
For the respondent(s) None.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. This petition under Section 561-A Cr.P.C. has been preferred seeking quashing of judgment and order dated 18.08.2015 passed by the learned 2 nd Additional Sessions Judge, Jammu, in file No.58/Rev. titled 'Tariq Mehmood Bhat Vs. Zubaida Akhtar and anr.' whereby criminal revision petition against order dated 07.08.2014 filed by the respondent was partly allowed to the extent of interim maintenance granted under Section 488 Cr.P.C in favour of petitioner No.1 has been ordered fresh consideration by the trial Court and upheld the impugned order in so far it pertains to petitioner No.2. Petitioners also seek modification of order dated 561-A Cr.P.C. No.05 of 2016 Page 1 of 9 07.08.2014 passed by learned Judicial Magistrate Ist Class (Sub Judge) Jammu by enhancing the interim maintenance.
2. Facts giving rise to the instant petition are that the respondent had solemnized marriage with petitioner No.1 as per Muslim rites and ceremonies; that out of the said wedlock, one male child namely Mohd. Muzamil (petitioner No.2) was born on 22.05.1998, who is residing with petitioner No.1 since his birth at Mohalla Ustad, Jammu; that at the time of marriage, respondent was unemployed and soon after the marriage, respondent along with petitioner No.1 were thrown out of the house of respondent by the parents of respondent and it was the parents of the petitioner No.1 who provided protection and shelter to the respondent and petitioner No.1; that respondent and petitioner Nos.1 & 2 resided at the parental house of petitioner No.1 for more than five years and subsequently the parents of the petitioner No.1 arranged a rental accommodation in Mohalla Ustad, Jammu and the expenses of all three were being met by the parents of petitioner No.1 including the education expenses of petitioner No.2; that in the year 1998, respondent was recruited in Police Department and thereafter he started harassing petitioner No.1 and on one fine morning without telling anything to petitioner No.1, the respondent left the rental accommodation at Mohalla Ustad, Jammu and later on it came to the knowledge of petitioner No.1 that he had gone to Rajouri and had managed to get transferred there; that respondent told the petitioner No.1 that if she wants to continue with the respondent, she will have to transfer the title and ownership of lad, which petitioner No.1 got with the help of financial assistance provided by her brother and sisters, in the name of respondent otherwise she would have to face bad consequence of it; that after refusing to transfer the land by petitioner No.1, respondent told the petitioners that he has no need of petitioners and it came to the knowledge of petitioner No.1 is going to solemnize a second marriage and thereafter just to harass petitioner No.1 respondent sent a legal notice on 22.05.2010 to petitioner 561-A Cr.P.C. No.05 of 2016 Page 2 of 9 No.1 and after proper reply by petitioner No.1, respondent did not communicate further and filed two cases at Rajouri against petitioner No.1, one for restitution of conjugal rights and another for custody of minor son i.e. petitioner No.2; that thereafter petitioner No.1 filed two civil transfer applications (CTA Nos.27/2013 & 28/2013) before this Court to transfer the case from Rajouri to any Court of competent jurisdiction at Jammu, in which, this Court stayed the proceedings in the above two cases till disposal of the CTAs; that after the proceedings in the above mentioned cases having been stayed by this Court, the respondent made another attempt to harass the petitioners by sending 'Divorce/Talaknama' dated 29.08.2013; that she filed a suit for declaration declaring the said Talaknama as null and void, in which the operation of the said document was stayed. Subsequently, the stay was vacated; that petitioner No.1 has filed an appeal in the Court of learned Additional District Judge, Jammu, in which the stay has been granted; that petitioner No.1 being a housewife has no earning and petitioner No.2 is a minor studying in 11 th class, whereas respondent is getting a salary of Rs.32570/- per month, the petitioners filed a petition for grant of maintenance in the Court of learned Judicial Magistrate Ist Class (Sub Judge) Jammu; that the learned Magistrate vide order dated 07.08.2014 granted interim maintenance of Rs.3000/- p.m. to petitioner No.1 and Rs.2000/-p.m. to petitioner No.2; that respondent filed a revision petition against order dated 07.08.2014 before learned 2nd Addl. Sessions Judge, Jammu and vide order dated 10.08.2015 learned Sessions Judge, has partially allowed the revision petition so far as granting the interim maintenance to petitioner No.1 is concerned on the ground that the respondent has pleaded that he has divorced petitioner No.1. However, revision petition pertaining to the grant of maintenance to petitioner No.2 has been dismissed.
3. Learned counsel for the petitioners has challenged impugned order dated 10.08.2015 passed by learned 2nd Addl. Sessions Judge, Jammu, setting 561-A Cr.P.C. No.05 of 2016 Page 3 of 9 aside the interim maintenance granted to petitioner No.1, on the ground that ratio of the judgment in Shamim Ara's case not applicable is misconceived. In Shamim Ara's case, the Hon'ble Court has clearly laid down the law and procedure for the valid Talaq/Divorce under Mohammadan Lal. A bare perusal of the document dated 29.08.2013 would make clear that the same is contrary to law settled in the said case by the Hon'ble Supreme Court that in case any document styled as divorce deed is executed without fulfilling the conditions as laid down under Mohammedan Law and Shariat Law, the same would be invalid. That so far as petitioner No.2 is concerned, the learned Magistrate has granted a meager amount of Rs.2000/- per month as he needs more than Rs.10,000/- per month in order to meet the diet expenses and other expenses including his fee, purchase of books, uniform, tuition fee and transportation etc. The learned Magistrate has not considered this aspect of the case as such the order passed by the learned Magistrate dated 07.08.2014 deserves to be modified by enhancing the maintenance to the tune of Rs.10,300/- per month. Petitioner No.1 is also entitled to at least Rs.7000/- per month as maintenance in to meet the day to day expenses as the learned Magistrate has awarded a meager amount of Rs.3000/- per month in her favour. It is also submitted that though the order dated 07.08.2014 passed by the learned Magistrate was not challenged before the learned Sessions Judge, Jammu, yet this Court under inherent jurisdiction has ample power to modify the said order and enhance the maintenance in order to do justice.
4. Noting of the Registry reveals that Mr. Rahul Bharti, Advocate, has filed the power of attorney on behalf of respondent, but no one represented the respondent when the matter came up for consideration.
5. Heard learned counsel for the petitioners, gone through the record and considered the law on the subject.
6. From the perusal of trial court file, it reveals that petitioners, who are wife and son of respondent has filed a petition u/s 488 Cr.P.C. against 561-A Cr.P.C. No.05 of 2016 Page 4 of 9 respondent. It has been stated that marriage between petitioner no.1 and respondent was solemnized on 1.12.1996 and out of marriage wed lock petitioner no.2 herein was born on 22.5.1998.
7. The maintenance was claimed on grounds of cruelty and desertion. Along with main petition, application for interim maintenance was also filed.
8. Respondent herein appeared and filed objections and stated that he has divorced his wife since 29.8.2013; that she has already filed suit for seeking declaration that divorcee deed is null and void.
9. Court below after hearing the parties allowed the petition by relying on judgment of this court (2012(3) SLJ page 829 case tilted Durga Dass v Anju Devi , and granted interim maintenance to petitioners @ Rs. 3000/- and 2000/- PM. respectively.
10. Aggrieved by this order respondent filed a revision petition before 2 nd Additional Sessions Judge Jammu, who set-aside the maintenance granted to wife. Before court below wife put reliance on pronouncement of Hon'ble Supreme Court in Shamim Ara's case, and pronouncements of this Court in Gurmeet Kour Vs. Amrik Singh 2006(1) JKJ HC 201; Mariyam Akhter and anr. v Wazir Mohd. 2010 (4) JKJ 13 HC, Amina Bano v. Abdul Majid Ganai 2005( 1) SLJ 341 and Manzoor Ahmed Khan v. Mst. Saja & others 2003 (2) SLJ 619, wherein it is held that unless Talaq is proved to be for reasonable cause and to be proceeded by attempts at reconciliation and husband has to prove by evidence that Talaq is effective, the interim maintenance cannot be denied.
11. But court did not rely on these judgments and held that facts of above stated cases in which laws have been formulated are not same to that of present case. Because in present case, wife has filed civil suit for declaration that divorce deed is null and void and civil court, has refused to stay the divorce deed. In this way divorce has been admitted by wife. This finding of court below is not tenable because, if such finding is sustained then very purpose and object of granting interim maintenance during the pendency of main 561-A Cr.P.C. No.05 of 2016 Page 5 of 9 petition Section 488 Cr.P.C. shall be forfeited. Because purpose of granting interim maintenance is that wife /claimant may survive up to final adjudication of petition U/s 488 Cr.P.C., which takes long time to finalize. The provisions of maintenance under section 488 of the Code of Criminal Procedure are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties. The Code of Criminal Procedure, being a general law has a uniform applicability to all the persons irrespective of their religion, caste or status. In the event of conflict between a special law and a general law, it is accepted judicial principle that special law shall prevail over the general law. Section 488 of Cr. P.C, is applicable to the Muslims including divorced Muslim woman irrespective of the fact that in Muslim personal law, wife ceases to be wife on Talaq. Muslim husband is liable to provide maintenance for divorced wife who is unable to maintain herself, so long as she had not remarried. The statute provides for maintenance of wife by her husband even after the divorce and creates an illusory or fictitious relationship between the two spouses in view of the social conditions prevalent in the country. Further it also prevents the former husband of the divorced wife to drive their erstwhile wives to a state of poverty and destitution till they remarry.
12. The finding of court below that in civil suit, court has not granted stay of divorce deed in interim relief application, is further not tenable on the ground that in case petitioner/wife succeeds in suit and deed of divorce is declared null and void, then loss sustained by her in non-granting of interim maintenance, cannot be compensated. Provisions of law have to be interpreted in such a way that, it can help the destitute, non earning or having insufficient source of income, to survive. Because, life is precious gift granted by nature, every person has fundamental right to live with dignity. Further court below was not dealing with final order passed in a petition under section 488 Cr.P.C.
561-A Cr.P.C. No.05 of 2016 Page 6 of 913. In 2014 (4) JKJ (HC) 3 in case titled Manzoor Ahmed Dar Vs. Tasleema Akhter (Mst.) and anr. and in 2017 (2) JKJ (HC) 510 in case titled Ab. Qayoom Vs. learned Ist Addl. Sessions Judge, Jammu & ors., this Court has held that Interim maintenance is allowable till the plea of divorce is proved , otherwise non grant thereof shall have disastrous consequences. On the one hand, sociological object of section 488 Cr.P.C. will be defeated because there will be every apprehension and chance for the seeker of interim maintenance to be subjected to destitution and vagrancy. Now even now divorcee wife is entitled to maintenance till she remarry.
14. In 2010 (1) SCC 666 in case titled Shabnam Bano v Imram, it is held as under:-
"10. At the outset, learned counsel for the appellant contended that learned Single Judge has gravely erred in dismissing the appellant's Revision on misconception of law on the ground that after divorce of a Muslim wife, a petition under Section 125 of the Cr.P.C. would not be maintainable. It was also contended that learned Single Judge proceeded on wrong assumption in dismissing appellant's Revision claiming maintenance under Section 125 of the Cr.P.
13. The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum.
24. In our opinion, the point stands settled by judgment of this Court reported in (2001) 7 SCC 740 titled Danial Latifi & Anr. Vs. Union of India pronounced by a Constitution Bench of this Court. Paras 30, 31 and 32 thereof fully establish the said right of the appellant. The said paragraphs are reproduced hereinunder :
"30. A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the 561-A Cr.P.C. No.05 of 2016 Page 7 of 9 argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners. 1. Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.
Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.
26. In the light of the findings already recorded in earlier paras, it is not necessary for us to go into the merits. The point stands well settled which we would like to reiterate.
27. The appellant's petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only."
15. In view of what has been discussed above, the impugned order whereby setting aside the interim maintenance to wife, suffer from infirmity of law, it is set aside and order of JMIC is restored. So far question of enhancement of maintenance is concerned, I do not find any legal ground to enhance the same at this stage, because interim maintenance is always subject to final outcome of main petition. JMIC has always power to alter or increase the 561-A Cr.P.C. No.05 of 2016 Page 8 of 9 same at the time of deciding the main petition . If maintenance is enhanced, claimants can get arrears of maintenance. Further income of respondent /husband is yet to be ascertained and it is fact which is to be proved during trial.
16. Disposed of in the afore mentioned terms.
(Sanjay Kumar Gupta) Judge Jammu 25.08.2017 Narinder 561-A Cr.P.C. No.05 of 2016 Page 9 of 9