Mushtaq Ahmad Badyari vs < on 12 November, 2020

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Jammu & Kashmir High Court - Srinagar Bench

Mushtaq Ahmad Badyari vs < on 12 November, 2020

1. The present petition has been filed under section 561-A Cr.P.C by the petitioner for quashing of order dated 26.12.2017 passed by the Additional Special Mobile Magistrate, Awantipora (hereinafter to be referred as the trial court) and also order dated 14.06.2018 passed by the Additional Sessions Judge, Pulwama in the revision petition filed by the petitioner by virtue of which the order dated 26.12.2017 (supra) has been upheld.

2. Briefly stated the facts relevant are that the respondent-wife herein had filed an application under section 488 Cr.P.C. for grant of maintenance on the ground that the marriage between the petitioner-husband and respondent has been solemnized according to Muslim rites and rituals on 12.03.2014 and without any rhyme or reason, the petitioner herein has turned out the respondent-wife of her AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 2 CRMC No. 412/2018 matrimonial home eight months prior to the filing of the application i.e. 02.07.2016. The respondent-wife further stated that she was without any source of income and because of the neglect by the petitioner she had been residing with her brother.

3. The respondent-wife had also filed an application for interim maintenance before the trial court. The petitioner herein filed the objections in which he has categorically stated that the respondent was a divorcee and was not entitled to any maintenance under Muslim Law. He pleaded that he had sent the divorce deed through registered post at her home address. The divorce has been witnessed by the witnesses and received by the respondent-wife. The petitioner- husband placed on record the copy of the divorce deed and also the postal receipt in support of his assertions. He further pleaded that he was working as a Daily Wager and hardly earned Rs. 5,000/- per month and also he had liability of maintaining the old aged ailing parents.

4. The learned trial court, vide order dated 26.12.2017 directed the petitioner to pay a sum of Rs. 2,000/- per month from the date of filing of the application, to the respondent as interim maintenance. The said order was challenged by the petitioner by filing the revision petition and the Additional Sessions Judge, Pulwama vide order dated 14.06.2018 upheld the order passed by the learned trial court. It is noticed that during the pendency of the revision petition, the petitioner-husband placed on record the copy of the document, titled- settled reply under reference No. 190000-04131 issued by the Senior Superintendent of Post Office, Srinagar dated 16.05.2016. In the said document, it was mentioned that the complaint of Delay in delivery of Articles of Registered Letters addressed to Rukaya (Mehak) Rah D/o. Jalal Din Rah R/o Awantipura AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 3 CRMC No. 412/2018 near Municipal Committee, District Pulwama is settled on 16.05.2016 with the following information that 'The Article stand refused by the addressee and returned to you on 11.05.2016". Learned Additional Sessions Judge, Pulwama, while upholding the order of the trial court, differed with the observations made by the learned trial court with regard to reconciliation efforts made between the parties. However, on the ground that the divorce deed was not received by the respondent herein, upheld the order passed by the trial court.

5. The petitioner has assailed both the orders passed by the learned trial court as well as by the revisional court primarily on the ground that once the plea of divorce has been taken by the petitioner, the learned trial court ought to have desisted from granting any interim maintenance and also that the court of revision has passed the order without giving finding on the legal question of law and has erroneously upheld the order passed by the trial court.

6. The Learned Counsel for the petitioner has reiterated the grounds taken in the memo of petition and has placed much reliance upon the decision of coordinate bench in case titled Masarat Begum vs Abdul Rashid Khan and another.

7. On the contrary Learned Counsel for the respondent has argued that the if the plea of the petitioner is accepted it shall defeat the very purpose of sec 488 Cr.P.C and also the validity of the divorce is the subject matter of trial and can be a ground for refusing the interim maintenance.

8. Heard and considered.

9. The purpose and object for incorporating the provision under section 488 Cr.P.C. (Section 125 of the Central Code) has been discussed by the Apex AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 4 CRMC No. 412/2018 Court in Daniel Latifi and another v Union of India, reported in 2001(7) SCC 740, the relevant paras is reproduced as under:

"20. In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated, both economically and socially and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life -- a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the Wakf Boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 5 CRMC No. 412/2018 national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question.

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 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."

(Emphasis Supplied)

10. So the sole purpose and object of section 488 Cr.P.C. is to prevent the vagrancy of the wife, children and parents as the case may be, by compelling those who are under legal obligation to support those who are unable to support themselves. Though there is no provision in the section 488 Cr.P.C. for grant of interim maintenance but as per the law laid down by Hon'ble Apex Court, the Courts were empowered to grant interim maintenance. It is profitable to take note of the judgment of Apex Court in case titled Savitri v. Govind Singh Rawat, reported in (1985) 4 SCC 337 and the relevant para is reproduced as under:

"6. In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 6 CRMC No. 412/2018 to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest"

(Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). [Vide Earl Jowitt's Dictionary of English Law, 1959 Edn., p. 1797.] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 7 CRMC No. 412/2018 appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application. In taking this view we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under Section 125 of the Code to the Family Courts constituted under the said Act."

11. The only issue that has been raised by the petitioner is whether a wife is entitled to interim maintenance once a plea of divorce has been taken by the husband in his objections. The Holy Quran expressly forbids the man to seek pretext for divorcing his wife so long as she remains faithful and obedient to him. In Shamim Ara v State of Utter Pradesh, AIR 2002 SC3551 the Hon'ble Apex Court has held that the correct law of talaq as ordained by the Holy Quran is that the talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wife's family and other from the husband's family, if the attempt fails, talaq may AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 8 CRMC No. 412/2018 be effected. The same principle has been reiterated by the Constitutional Bench of the Apex Court in case Shayara Bano v Union of India, reported in 2017(9) SCC1.

12. Thus, all the essential requirements as mentioned above are required to be proved by the husband in order to prove a valid talaq. The perusal of the objections filed by the petitioner-husband in the trial court reveals that it has been categorically pleaded that the respondent-wife has received the divorce deed. But before the court of revision, stand was taken by the petitioner-husband by filing the document/certificate issued by the Senior Superintendent of Post, Srinagar that the respondent-wife had refused to accept the divorce deed. So there was nothing on record to demonstrate that the divorce deed (talaqnama) was ever received by the respondent-wife. More so, this Court finds difficult to agree with the observation made by the revisional court, disagreeing with the observations made by the learned trial court with regard to the reconciliation efforts made between the parties. The Additional Sessions Judge, Pulwama has observed that in talaqnama, the copy of which has been placed on record by the petitioner- husband, it is mentioned that reconciliation efforts were made by the respectable persons named in the talaqnama. But it is not only the mandate of law that the reconciliation should have been attempted between the parties but the reconciliation must be made by the two arbiters, one from the family of the wife and other from the husband's family. In the divorce deed it has been only mentioned that the reconciliation efforts were made by the persons, two from the side of the respondent and others from the side of the petitioner but there is neither any pleading nor it is mentioned in the divorce deed that they were the AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 9 CRMC No. 412/2018 family members of the respondent-wife chosen by her for reconciliation so this requirement too is required to be fulfilled so as to prove a valid divorce.

13. Learned counsel for the petitioner has placed much reliance upon the judgment of the coordinate bench of this Court, titled, Masarat Begum vs Abdul Rashid Khan and another. The said judgment also cannot come to the rescue of the petitioner. The application for interim relief has been decided by the trial court on the basis of admitted fact about the marriage between the parties in the year 2014 and whether there was valid talaq and whether talaqnama was communicated to the respondent are the disputed questions of facts those can be adjudicated upon only during trial and if the wife is denied any maintenance till the proof of the said fact, it will defeat the very purpose for which the Apex Court has evolved the principle of grant of interim maintenance. The admitted fact remains that there was a relationship of husband and the wife and once there is a plea of dissolution of marriage by a husband, the onus is always on the husband to prove the same by way of cogent evidence. The respondent-wife cannot be denied interim maintenance solely on the plea taken by the petitioner-husband in his objections that he has sent the divorce deed to the respondent and when there is nothing on record to demonstrate that the respondent-wife has ever received the divorce deed particularly when the stand taken by the petitioner before the two courts is contradictory.

14. Thus, merely taking a plea of divorce in the objections by the petitioner before the court below by narrating that he has sent the divorce deed to his wife through registered post and the same stands received by the wife would not disentitle the wife to get interim maintenance. Reliance is also placed upon the decisions of Coordinate Bench in Mohammed Shaffi Bhat versus Halima AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document 10 CRMC No. 412/2018 Begum reported in 2014(1)JKJ 373 and Shamim Akhter versus Shadab Anjum. No fault can be found with the orders passed by both trial court as well as court of revision. The trial court has rightly granted the maintenance and also the order of the trial court has rightly been upheld by the revisional court.

15. For all what has been discussed above, this petition has no merit, as such, the same is dismissed. Petitioner is directed to liquidate whole of the arrears of maintenance in six installments with in the period of six months from today.

(RAJNESH OSWAL) JUDGE JAMMU 12.11.2020 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes AASIF GUL 2020.11.12 12:10 I attest to the accuracy and integrity of this document

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Jammu & Kashmir High Court - Srinagar Bench