Jammu & Kashmir High Court - Srinagar Bench
Niyaz Ahmad Bhat vs State Of J&K In Slj 2011 (Ii) on 20 November, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Cr.M.P. No. 148 of 2009 c/w Cr.Rev. No. 07 of 2007 Niyaz Ahmad Bhat Petitioners Mst. Shameema and another Respondents !Mr. Tanveer Ahmad Bhat, Advocate for non-applicant ^Mr. A.M. Khan, Advocate for applicants Honble Mr. Justice Hasnain Massodi, Judge Date:20/11/2012 : J U D G M E N T :
1. Mst. Shameema petitioner herein, on 11th July 2005 filed an application under section 488 Code of Criminal Procedure on her behalf and on behalf of her minor son Master Akib Niyaz against respondent in the court of Chief Judicial Magistrate, Srinagar. The petitioner pleaded that in the year 2004 she along with her minor son was thrown out by her husband from her marital home and was thereafter left by him without any maintenance allowance. It was pleaded that respondent was possessed of sufficient means while petitioner and her son had no source to fall back upon.
2. The respondent opposed the application, inter-alia, on the ground that he had divorced the petitioner vide Divorce Deed dated 6th July 2005, duly served on petitioner and that he, therefore, was not under any obligation to pay maintenance allowance to petitioner Mst. Shameema. The respondent, to lend support to his stand, placed photo copy of the Divorce Deed dated 6th July 2005 on the file.
3. Learned Magistrate afforded parties adequate opportunity to adduce evidence in support of their respective stands. The Trial Court on going through the pleadings and evidence brought on the file concluded that the only controversy arising out of pleadings related to divorce claimed to have been pronounced by respondent on 6th July 2005. However, the evidence available on the file, according to Learned Trial Magistrate, did not inspire confidence and enable respondent to discharge the burden placed on him. The respondent, for the reasons detailed in the order dated 26th March 2007, was held to have failed to prove that he had divorced the petitioner in accordance with law. Learned Magistrate proceeded to conclude that petitioner Mst.Shameema was, what Learned Magistrate called undivorced wife of respondent and respondent, therefore, under the Statutory obligation to pay maintenance allowance to petitioner, irrespective of his source of income. Learned Trial Magistrate, accordingly, directed respondent to pay an amount of Rs.1200/- per month as maintenance allowance to each of the petitioners with effect from 11.07.2005 i.e. date of filing of the application.
4. The order dated 26th March 2007 was questioned by respondent (petitioner before the Revisional Court) in Criminal Revision Petition No.07/2007. The respondent reiterated that he had divorced petitioner a few days before she approached the Trial Magistrate with the application under section 488 Cr.P.C and therefore, he was not liable to pay any maintenance allowance to petitioner. It was insisted that the relationship of husband and wife had come to an end with effect from 6th July 2005 and that the parties in addition to the Revision Petition, were entangled in litigation under section 25 of Guardian & Wards Act 1977 before the court of Principal and Sessions Judge Srinagar. The Trial Magistrate, according to respondent, did not appreciate the evidence in its right perspective and did not afford him an opportunity to rebut the stand taken by petitioner. The Revision Petition was dismissed on 3rd September 2007 as devoid of any merit.
5. The petitioner has now come up with an application under section 476 Cr.P.C. and seeks direction to Senior Superintendent of Police, Police Station Crime Branch Srinagar, to register criminal case against respondent on the ground that respondent filed a false and forged Divorce Deed before the Trial Court to escape the liability under section 488 Cr.P.C. It is pointed out that respondent on 22nd January 2008 executed a Divorce Deed, sufficiently indicating that earlier Divorce Deed dated 6th July 2005 was a piece of forgery.
6. Heard and considered.
7. Learned counsel for petitioner, placing reliance on law laid down in Kashmir Motor Boat Association versus State of J&K in SLJ 2011 (II) 858 insists that any forged document placed on record of the court tantamounts to interference with process of administration of justice and that effort made by any party to litigation to obtain benefit on the basis of such forged document deserves to be dealt with in a manner that message goes to one and all that nobody would be allowed to pollute the course of administration of justice. Learned counsel for petitioner places much emphasises on Divorce Deed claimed to have been executed by respondent on 6th July 2005. It is pointed out that had respondent divorced petitioner vide Divorce Deed dated 6th July 2005 and executed the Divorce Deed on said date, there was no reason for respondent to execute fresh Divorce Deed on 22nd July 2008. Learned counsel for petitioner argues that the Divorce Deed dated 6th July 2005 was nothing but a piece of forgery pressed into service to enable respondent to defeat petitioners claim for maintenance and wriggle out of his responsibility under the marriage-contract and Statutory liability under section 488 Cr.P.C. to maintain petitioner.
8. The case set up and arguments advanced by learned counsel for petitioner may sound convincing on the first blush, but pale into insignificance on a closer look. The document styled as Divorce Deed dated 22nd January 2008 is not stricto senso divorce deed. The respondent does not pronounce divorce through the Deed, scribed by Shri Tanveer Ahmad Bhat in presence of two witnesses Shri Ab . Majid Bhat and Assadullah Bhat at the instance of respondent. It makes reference to Divorce Deed dated 6th July 2005 and merely reiterates that respondent has divorced petitioner vide Deed dated 6th July 2005, that according to recitals of the Deed dated 22nd January 2008 was published by respondent in local newspaper. The Deed dated 22nd January 2008 refers to the proceedings under section 488 Cr.P.C. and is nothing but an effort on the part of respondent to reiterate his stand that relationship of husband wife between parties has come to an end on 6th July 2005.
9. Viewed thus the Deed dated 22nd January 2008 cannot be taken as a fresh Deed, so as to draw inference that earlier Deed dated 6th July 2005 was a piece of forgery, fraud or concoction.
10. A party to litigation may adduce evidence oral and documentary to support his stand. However, he or she may not, for one or other reason, be able to prove the document by evidence that would sound cogent and convincing to the Trial Court. This cannot automatically lead to the conclusion that the document is piece of forgery and making the party, proposing to rely on it, liable for criminal liability and warrant action under section 476 Cr.P.C.
11. In the present case if the Trial Magistrate held the respondent to have failed to prove Divorce Deed 6th July 2005, the conclusion drawn must neither prompt petitioner to believe that the document is forged nor persuade the Court to exercise powers under section 476 Cr.P.C.
12. Viewed thus the petition is without any merit and is, accordingly, dismissed.
13. Record be sent down.
( Hasnain Massodi ) Judge Srinagar 20/11 /2012 Ajaz Ahmad