Jammu & Kashmir High Court
Zahoor Ahmad Banday vs Yasmeen Jan And Ors. on 9 May, 2005
Equivalent citations: 2006(1)JKJ102
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. Learned 3rd Additional Sessions Judge, Srinagar has made this reference with the recommendation that interim maintenance granted in favour of respondent No. 1 is not warranted under law and interim maintenance granted in favour of Respondent No. 2 is on higher side.
2. Heard. Perused. It appears that respondents, herein, have filed an application under Section 488 Cr.P.C. for grant of maintenance, which is pending before 1st Class Judicial Magistrate (4th Additional Munsiff), Srinagar and along side the application under Section 488 Cr.P.C. the respondents have also filed an application for grant of interim maintenance. The learned Magistrate after hearing both the parties has granted interim maintenance to the tune of Rs. 1000/- and Rs. 800/- in favour of respondents 1 and 2 herein, respectively vide order dated 25th May, 2004.
3. Feeling aggrieved by the said order, the petitioner Zahoor Ahmad Banday filed a revision petition before the learned Pr. Sessions Judge, Srinagar, who transferred the same to 3rd Additional Sessions Judge, Srinagar. The learned 3rd Additional Sessions Judge, Srinagar, after hearing the arguments made a reference to this Court and has recommended that interim maintenance granted in favour of, respondent No. 1 is not warranted under law, respondent No. 2 to the tune of Rs. 800/- be reduced to Rs. 500/-.
4. The learned 3rd Additional Sessions Judge, Srinagar has, while writing the order, formulated following three issues;--
1. Whether the applicant No. 1 (Respondent No. 1 herein) is entitled to interim maintenance when the non-applicant (petitioner herein) has pleaded divorce having been given to her under Muslim Law in his written statement before the Trial Court?
2. Whether the awarded interim maintenance to the applicants (Respondents herein) by the Trial Court is excessive and not commensurate with the income of the non-applicant (petitioner herein)?
3. Whether the impugned order is an interlocutory order and, as such, cannot be the subject of revision? Further, the awarded quantum of interim maintenance Under Section 488 of the Cr.P.C. cannot be challenged in 'revision?
5. Considered. The order granted or refusing interim maintenance is an order which finally determines the rights in between the parties at that stage. Thus this order cannot be termed as an interlocutory order. Thus the finding returned by the learned 3rd Additional Session Judge, Srinagar is correct to that extent.
6. The recommendation made by learned 3rd Additional Sessions Judge, Srinagar to reduce the quantum of maintenance granted in favour of respondent No. 2 is not correct and thus requires to be rejected. The learned 3rd Additional Sessions Judge should have taken into consideration that learned Magistrate has passed a speaking order after hearing the parties. The respondent No. 2 is the son of the petitioner herein. The father is under legal obligation to maintain his son. The petitioner, Zahoor Ahmad, has admitted in the objections filed on 20th April, 2004 before the learned Magistrate that respondent No. 2 was of the age of one year. The recommendation in terms of the reference has been made on 9th March, 2005. Thus the respondent No. 2 was two years old at that time. The learned Sessions Judge should have kept in view the requirement of a minor son, respondent No. 2.
7. Now, whether the plea of divorce raised by the petitioner in the objections is a ground to refuse interim maintenance to respondent No. 1?
The learned 3rd Additional Sessions Judge has opined that interim maintenance cannot be granted to the wife, when the plea of divorce is taken by the husband in the objections.
8. The wife is entitled to interim maintenance till the plea of divorce is proved. If the interim maintenance will not be granted to the wife while keeping in view the plea of divorce raised by the husband, that will amount to, accepting the plea of divorce. The Apex Court has held in case Shamim Ara v. State of UP reported in AIR 2002 SC 3551 that the plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband unless it is proved. Para 16 of the Judgment (supra) is reproduce as under;--
16. We are also of the opinion that the talaq to be effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to utter, to articulate (See Chamber 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced something in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-19987 and if the failed in proving he plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed for delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as relevant and of any value.
9. Keeping in view the observation made by the Apex Court, the husband has to prove by leading evidence, the factum of divorce. Thus, keeping in view, the said observation, the recommendation made by learned 3rd Additional Sessions Judge, Srinagar on this count also merits to be rejected.
10. Viewed thus the recommendations made in terms of the reference by learned 3rd Additional Sessions Judge, Srinagar are rejected. The impugned order passed by the learned Magistrate is upheld. The reference is accordingly answered. The learned Magistrate is directed to take the proceedings for grant of maintenance to its logical end within three months by providing only three opportunities to the petitioners (respondents herein) for leading evidence in one month and also the same number of opportunities be given to the respondent (petitioner herein) for leading his evidence within the same period and thereafter the learned Magistrate shall hear the arguments and pass final order within one month.
11. Registry to send down the file along with a copy of this order.