Jammu & Kashmir High Court
Shamim Akhter vs Shadab Anjum on 4 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Rev. 68/2013
MP No.47/2013
Date of order:-04.08.2017
Shamim Akhter V. Shadab Anjum
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. Shafiq Chowdhary, 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. The instant Criminal Revision has been filed against the order dated 26.05.2012 passed by the learned Special Judicial Mobile Magistrate Passenger Tax, Shops and Establishment Act, Jammu whereby the learned Magistrate has declined to grant interim maintenance to the petitioner and prayed that the said order may kindly be set aside.
2. In the revision, it is stated that the petitioner is the legally wedded wife of respondent in pursuance to the marriage performed between the parties in accordance with the injunctions of Islam in the year 2008 and resided together as husband and wife. Out of their wedlock one male child namely Faisal was born, who is being taken care of by the petitioner. It is further stated that owing to the inhuman and barbaric Cr. Rev. No. 68/2013 Page 1 of 5 approach of respondent and furthermore refusal to maintain by the respondent, the petitioner was forced under the compelling circumstances to approach the Court below by filing an application under Section 488 Cr.P.C along with an application for interim maintenance.
3. The learned Magistrate after issuance of notice to the respondent for filing objections and after hearing both the parties passed the order impugned dated 26.05.2012 by virtue of which the Court below declined/refused to grant any interim maintenance to the petitioner for the reason that the respondent pleaded divorce in his objections. However, the Court below allowed the interim application to the extent of the minor son and directed the respondent to pay a sum of Rs.1500/- per month to the minor. It is further contended that denial to grant interim maintenance to the petitioner has compelled her to invoke the revisional jurisdiction of this Court to check the legality, correctness and propriety of the order impugned which has resulted in grave miscarriage of justice to the petitioner. It is also contended that the Court below while appreciating the facts of the case and the law held the alleged divorce pleaded by the respondent to be the subject of proof, as such the status of the applicant/petitioner was to be considered as wife and the Court below should have granted the interim maintenance to the petitioner. It is strange enough to observe Cr. Rev. No. 68/2013 Page 2 of 5 that on one hand the Court below had kept the alleged divorce subject to proof by respondent and on the other hand has declined to grant interim maintenance to the petitioner, which has resulted grave injustice to the petitioner, as such, the petitioner challenges the order impugned on the following grounds:-
i) The order impugned to the extent of
denial/refusal of the interim maintenance
under Section 488 Cr.PC to the petitioner is violative to the basic concept of the social welfare legislation and the substantial justice.
ii) The Court below seems to have ignored the guidelines as provided by this Court in case titled as "Mariyam Akhter & Anr. Vs Wazir Mohd." (2010 (4) JKJ 13 HC) wherein this Court has specifically provided the guidelines for holding a talaq as a valid talaq and consequences thereof. The Court below has misinterpreted the law as such committed a grave illegality while passing the order impugned.
iii) The object of the legislation is to protect the wife from starvation and misuse of the powers of divorce exercised without following the injunctions of Islam. The petitioner is to be treated as wife till the divorce is validly proved and the Court below keeping the alleged divorce to the subject of proof by respondent has committed a great illegality while refusing the interim maintenance to the petitioner.
iv) The Court below has failed to assign any reason for the refusal to grant interim maintenance to the petitioner, that too when the alleged Cr. Rev. No. 68/2013 Page 3 of 5 divorce was kept subject to the proof from the other side.
v) That denial of interim maintenance to the petitioner by the Court below without any reason has resulted in gross failure of justice. The petitioner being a destitute and without any source of survival from any corner was not in a position to assail the order impugned before this Court, the delay caused in filing the instant revision petition is neither willful nor deliberate but owing to the miserability and poverty of the petitioner as such the inadvertent delay in filing the instant revision may kindly be condoned in the interest of justice.
4. Vide order dated 24.12.2013, this Court while entertaining the revision petition, issued notice to respondent, but the same was received back with a report that address of respondent was not found despite best efforts. Thereafter on 01.06.2017 fresh notice was issued to respondent and the same was to be served through Executing Court, but as per Registry note, notice has not been received back served or unserved. But he is appearing before court below in execution petition and in main case ,so has definitely knowledge of this petition and he deliberately not appearing.
5. Heard and considered.
6. Bare perusal of order of Court below, it reveals that trial Court has deferred the grant of interim maintenance on the ground Cr. Rev. No. 68/2013 Page 4 of 5 that status of wife as to whether she has been divorced or not is yet to be decided.
7. Now law has been settled that a Muslim wife is entitled to 'interim maintenance' till the plea of the divorce is proved. Grant of interim maintenance is allowable till plea of divorce is proved. Otherwise, non-grant thereof shall have disastrous consequences. On the one hand, sociological object of Section 448 CrP.C will be defeated because there will be every apprehension and chance that the seeker of interim maintenance to be subjected to destitution and vagrancy. In 2014 (1) JKJ 373 in case titled Mohamand Shafi Bhat v Haleema Begum, it is held that husband who has taken the plea of divorce in a petition u/s 488 Cr.P.C. has to prove during enquiry in main petition and same cannot be considered and acted upon at the time of deciding interim application.
8. In view of above, this revision petition is accepted and order dated 26.5.2012 is set-aside, Court below is directed to pass appropriate order of interim maintenance according to law.
9. Copy of this order along with record is sent back to trial court.
parties to appear before court below on 17.8.2017.
( Sanjay Kumar Gupta ) Judge Jammu:
04.08.2017 Narinder.Cr. Rev. No. 68/2013 Page 5 of 5