Jammu & Kashmir High Court - Srinagar Bench
Syed Zubair Shah vs < on 4 December, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on 17.11.2020
Pronounced on 04.12.2020
Crl R No.12/2020
CrlM No. 503/2020
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Syed Zubair Shah ...Petitioner/Applicant(s)
Through :- Mr. Z. A. Shah, Sr, Advocate with
Mr. A. Hanan, Advocate
V/s<
Farhat Rashid Sheikh .....Respondent (s)
Through :- Mr. Z. A. Qureshi, Sr. Advocate with
Ms. Rehana, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(through Video Conference from residence in Jammu)
d
JUDGMENT
rR
1. Vide order dated 22.10.2020, the instant petition was treated as a petition under section 561-A Cr.P.C (482 Cr.P.C).
2. Through the medium of this petition, the petitioner has questioned the validity of order dated 22.08.2020 passed by the Principal Sessions Judge, Baramulla by virtue of which the revision filed by the petitioner against order dated 08.02.2020 passed by the Special Mobile Magistrate, Baramulla (hereinafter to be referred as the trial court) for granting interim maintenance to the respondent, has been dismissed.
3. Briefly stated, the respondent herein had filed a petition under section 488 Cr.P.C. before the trial court and also an application for grant of interim maintenance was also filed. The petitioner after causing appearance filed the objections. During the pendency of the proceedings, the petitioner divorced the 2 Crl R No. 12/2020 respondent and the petitioner produced the divorce deed and postal envelope before the trial court. The petitioner has further stated that the divorce deed was sent to the respondent through speed post on 05.09.2019, however, the respondent refused to accept the same. The petitioner has further stated that refusal by the respondent to accept the divorce deed was duly certified by the Senior Postmaster vide certificate dated 14.09.2018.
4. The learned trial court after hearing both the parties vide order dated 08.02.2020 allowed the application for grant of interim maintenance and directed the petitioner to pay Rs. 5,000/- per month to the respondent from the date of filing of the application till disposal of the main application. The petitioner assailed the said order in a revision before the Principal Sessions Judge, Baramulla and the learned Sessions Judge upheld the order passed by the learned trial court vide order dated 22.08.2020.
5. Hence, both the orders, the order passed by the learned trial court as well as order of learned court of revision, have been assailed by the petitioner in the present petition primarily on the ground that the petitioner has divorced the respondent and had placed on record divorce deed before the trial court and in these circumstances the learned trial court was under an obligation to return some finding on the said issue. It is further contended that the learned Sessions Judge has noticed the divorce in the order but has dealt the said issue entirely in a different manner. It is further stated that both the courts below have not heard the petitioner.
6. Mr. Z. A. Shah, learned senior counsel appearing for the petitioner has vehemently argued that it was obligatory on the part of the trial court to consider the factum of divorce while considering the grant of maintenance. Similarly, the petitioner has assailed order dated 22.08.2020 passed by the court of revision and 3 Crl R No. 12/2020 argued that the court of revision has erroneously returned the finding that the petitioner though placed the divorce deed on record but never bothered to amend the pleadings before the learned trial court.
7. Mr. Z. A. Quershi, learned senior counsel appearing for the respondent has vehemently argued that the plea of divorce was never taken in the pleadings as it was during the course of the pleadings the petitioner has resorted to the talaq. Mr. Quershi has further argued that the talaq is not as per the Personal Law and also that it is the disputed question of fact that cannot be considered while considering the application for grant of interim maintenance.
8. Heard and considered the rival contentions of the parties and perused the record.
9. It is an admitted fact that the talaq was pronounced during the pendency of the petition for grant of maintenance before the learned trial court and this is also fact that the divorce deed was produced before the learned trial court. Without commenting upon the validity of talaq, this Court finds that the talaq was pronounced during the pendency of the petition under section 488 Cr.P.C. and the same cannot be a ground for refusing the interim maintenance. A perusal of the revision petition also reveals that the factum of divorce was specifically pleaded in the revision petition and annulment of the order of trial court was sought on the said ground but the same did not find favour with the court of revision and the said plea was rejected.
10. This Court while deciding CRMC No. 412/2018 titled, Mushtaq Ahmad Badyari vs. Ruquya Akhter on 12.11.2020, has already held that merely taking a plea of divorce in the objections to the application for grant of interim maintenance shall not dis-entitle the wife to get interim maintenance. In the instant 4 Crl R No. 12/2020 case the talaq was pronounced during the pendency of the petition and that is more strong a reason to reject the plea of divorce taken by the petitioner to dis-entitle the wife to get interim maintenance. The other contention raised by the petitioner that he was not heard by both the courts below, is contrary to record as the arguments advanced by both the counsels have been reflected in the order of the learned trial court as well as in the order of learned court of revision. There is no illegality in the orders impugned.
11. For all what has been discussed above, this petition has no merit and the same is, accordingly, dismissed. The petitioner is directed to clear all the arrears of maintenance within a period for three months from today. rR (RAJNESH OSWAL) JUDGE JAMMU 04.12.2020 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No RAKESH KUMAR 2020.12.04 13:43 I attest to the accuracy and integrity of this document