Jammu & Kashmir High Court
Shakeel Ahmed vs Rubina Shaheen And Anr. on 28 September, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.61/2018 & IA No.01/2018
Date of order:-28.09.2018
Shakeel Ahmed Vs. Rubina Shaheen and Anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. A.A. Khan, Advocate.
For respondent (s) : Mr. Syed Nadeem Hamdani, Advocate.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. In the instant petition, filed under Section 561-A Cr. P.C, petitioner seeks quashing of the order dated 21st August, 2017, passed by the learned Sub- Judge Special Mobile Magistrate, Rajouri in case titled, "Rubina Shaheen Vs. Shakeel Ahmed" pursuant to which petitioner has been directed to pay monthly interim maintenance of Rs. 3000/- in favour of respondent No. 2. Petitioner also seeks quashing/setting aside of the order dated 18th December, 2017, passed by the learned Additional Sessions Judge, Rajouri, pursuant to which the Revision Petition titled, "Shakeel Ahmed Vs. Rubina Shaheen" has been dismissed by upholding the order dated 21st August, 2017.
2. The factual matrix of the case is that the marriage between the petitioner and respondent No. 1, namely, Rubina Shaheen was solemnized way back in the year 2008 and after solemnization of their marriage, there were good and healthy relations between the petitioner and respondent No. 1 and with the passage of time and that too after the expiry of about two years, the attitude of respondent No.1 became cruel towards the petitioner and she started using abusive language against the petitioner and has also started CRMC No. 61/2018 a/w IA No. 01/2018 Page 1 of 9 2 staying at her parental house without the permission of the petitioner being her husband. According to Muslim rites and rituals, the petitioner had provided each and every thing at the time of solemnization of marriage and he was also providing all the basic amenities to respondent No. 1 according to her daily requirement, but despite that she was ill-treating the petitioner and was not ready to reside with him at her matrimonial house and without any rhyme or reason and justifiable cause started residing at her parental house, leaving behind the petitioner alone at his house. In this regard, the petitioner tried his level best to derive respondent No. 1 along with his minor son, but she did not change her cruel behavior towards the petitioner. He also made several requests to her parents for sending her back to the matrimonial house, but they did not pay any heed to his request, as a result of which the petitioner was left with no other option, but to divorce her by breaking the matrimonial relation with respondent No.1, as the same was not cordial towards the petitioner for the last more than 4/5 years. Copy of the Talaq Nama dated 14th July, 2017 is annexed with the petition as Annexure-A.
3. It is stated in the instant petition that respondent No.1, who has already been divorced by petitioner on 14th July, 2017 and was no more wife of the petitioner, filed a petition under Section 488 Cr. P.C before the Court of learned Sub-Judge Special Mobile Magistrate, Rajouri on 21st July, 2017 along with application for interim maintenance by leveling false and frivolous allegations against the petitioner and pursuant to which, she had prayed interim maintenance of Rs.7000/- P.M, as in the said petition, she has stated that the monthly income of petitioner is Rs. 60,000/-P.M, which was factually incorrect, as the said application was filed by filing a false affidavit, stating therein that monthly income of the petitioner is Rs. 50,000/- P.M. Notices were issued by learned Sub-Judge Special Mobile Magistrate, Rajouri on 21st July, 2017, in which next date of hearing was fixed on 21st August, 2017 and on the same date, the petitioner CRMC No. 61/2018 a/w IA No. 01/2018 Page 2 of 9 3 along with his counsel appeared before the Court and his counsel filed Vakalatnama on behalf of the petitioner and sought time to file objections with regard to the maintainability of the above titled petition, which has been filed by leveling false allegations against the petitioner herein. On 21st August, 2018, learned Sub-Judge Special Mobile Magistrate, Rajouri without granting any time to the petitioner for filing objections to the main petition as well to the application for granting interim maintenance, has passed the order (Annexure-C) dated 21st August, 2017, pursuant to which the petitioner has been directed to pay an amount of Rs.3000/- to respondent No.2. Feeling aggrieved of the same, the petitioner filed revision petition against the order dated 21st August, 2017 before the Court of learned Additional Sessions Judge, Rajouri on the ground that the order dated 21st August, 2017 has been passed without granting any opportunity to the petitioner for filing objections to the petition under Section 488 Cr. P.C as well as to the application for granting interim maintenance. More so, in the revision petition, the petitioner submitted that respondent No.1 has already been divorced by the petitioner vide Divorce Deed dated 14th July, 2017, which has been attested by the Notary District Court, Rajouri, as such, an opportunity for filing objections by placing on record the aforesaid Divorce Deed was required to be given to the petitioner. In addition to this, in the said revision petition, the petitioner has also stated that the petitioner is labourer by profession and his old parents are also living with him and petitioner being a poor person, he is not in possession of any landed property, as such, the interim maintenance of Rs.3000/-, passed by the learned Sub-Judge Special Mobile Magistrate, Rajouri is very much high and keeping in view the financial condition of the petitioner, order dated 21st August, 2017 is required to be set aside with a direction to the Court below to pass a fresh order.
CRMC No. 61/2018 a/w IA No. 01/2018 Page 3 of 9 44. In the instant petition, the petitioner has challenged the impugned orders dated 21st August, 2017 and 18th December, 2017, inter-alia, on the following grounds:-
i) That so far as application filed by respondent No. 1 for interim maintenance under Section 488 Cr.P.C is concerned, she is not entitled for the same because of the reason that she had left the matrimonial house on her own and despite making every efforts, she did not come back to her matrimonial house and after waiting for a long period of time, she has been divorced by Divorce Deed dated 14th July, 2017, as such respondent No. 1 is not entitled for any maintenance from the petitioner and the maintenance application filed by respondent No.1 is not maintainable against the petitioner.
ii) That so far as respondent No. 2 is concerned, admittedly he is the minor son of the petitioner and he is entitled for his maintenance from the petitioner, but the interim maintenance awarded by the learned Sub-Judge Special Mobile Magistrate, Rajouri vide order dated 21st August, 2017 is very high and the order impugned has been passed without giving any opportunity to the petitioner for filing objections before the Court below so that the petitioner would not in a position to bring true facts before the Court for passing order on application filed by respondent No. 1 herein for interim maintenance. It is pertinent to mention herein that the order impugned has been passed by the Court below without taking into consideration the financial condition of the petitioner and the petitioner is a labourer by profession, whose parents are also dependent upon hi, as such the order dated 21st August, 2017 passed by the Court below awarding interim maintenance of Rs. 3000/- in favour of respondent No. 2 is very high the same is liable to be set aside/quashed.
iii) That once the petitioner is labourer by profession having no landed property in his possession and in that case the interim maintenance was required to be passed by taking into consideration the financial status of the petitioner, as such the order passed by the Court below awarding monthly maintenance of Rs. 3000/- which is very high is not sustainable and the same is liable to be set aside/quashed.
iv) That the Court below has only appreciated the grounds taken by respondent No. 1 herein in her application that the petitioner is in Saudi Arabia and is also having live stock and a big chuck of land and his monthly income from all sources is Rs. 50,000/-, but the fact was that neither the petitioner was in Saudi Arabia as he is also sent back by forfeiting his visa and is also not having big chunk of land as well as live stock and in order to bring true facts before the Court below an opportunity of filing objections was required to be given to the petitioner which has not been given by the Court below despite making requires by his counsel on 21st August, 2017, which can also be verified CRMC No. 61/2018 a/w IA No. 01/2018 Page 4 of 9 5 from the order impugned herein, as such the order passed by the Court below is palpably bad in the eyes of law and the same is liable to be set aside/quashed.
v) That the order impugned pursuant to which revision petition filed by the petitioner has been dismissed by the learned Additional Sessions Judge, Rajouri vide order dated 18th December, 2017 is also bad in the eyes of law as the same has also been passed without appreciating the submissions made by the petitioner through the medium of revision petition in which he had specifically mentioned that neither he is having big chunk of land nor he is having any live stock. Moreover, he is also not in Saudi Arabia and the interim maintenance granted by the Court below without any opportunity for filing objections to the application for granting interim maintenance as such the order passed by the learned Additional Sessions Judge, Rajouri on 18th December, 2017 without appreciating the grounds taken by the petitioner in revision petition is not sustainable in the eyes of law and the same is liable to be set aside/quashed.
vi) That admittedly respondent No. 2 is the son of the petitioner and he is entitled for maintenance from the petitioner but the same can be granted keeping in view the financial condition of the petitioner, but here in this case, interim maintenance has been granted in favour of respondent No. 2 without taking into consideration financial condition of the petitioner as such the orders impugned dated 21st August, 2017 and 18th December, 2017 are liable to be set aside/quashed by directing the Court below to pass fresh order by taking into consideration the financial position/earning of the petitioner.
5. Heard learned counsel for both the sides. Learned counsel for the petitioner has reiterated the grounds taken in the memo of petition. Whereas counsel for respondents has supported the orders of court below.
6. I have considered the rival contentions of learned counsel for the parties.
7. From the bare perusal of the impugned orders of the Trial Court, i.e., order dated 21st August, 2017 and 18th December, 2017, it is evident that respondent No. 1-Rubina Shaheen has filed petition under Section 488 Cr.P.C for grant of maintenance against the petitioner for herself and her minor son, namely, Siraj, on various grounds including cruelty, desertion and demand of dowry. Along with main petition, an application for interim maintenance was also filed.
8. Petitioner herein appeared and admitted the paternity of child (respondent no.2). The trial court on 21/8/2017 passed order of interim maintenance in CRMC No. 61/2018 a/w IA No. 01/2018 Page 5 of 9 6 favour of child. The concluding part of the order dated 21 st August, 2017 reads as under:-
"Considered the matter in the light of the law laid down on the subject. I am of the considered view that from the circumstances projected by the petitioner, it is made out at this stage that the petitioners have a prima facie case. It is also made out at this stage that if the relief prayed for in the application is not allowed, there is every likelihood that the petitioner shall suffer of her life for the want of necessary requirements and basic amenities of life in absence of or due to lack of maintenance/money. The allegations and counter allegations leveled by the parties against each other are the questions to be determined at the trial. The passing of the interim maintenance cannot be deferred till the outcome of the final proceedings. Though the object of proceedings u/s 488 Cr. P.C for the grant of maintenance is intended to prevent the vagrancy by forcing a person to support his wife or the children as the case may. But while passing an order of maintenance, the Court must keep in mind the financial commitments of the respondent. While passing the quantum of maintenance, the Court must keep in mind the financial obligations, the amount of the income, the need of the petitioner, the maintenance fixed must neither be luxurious nor penurious, but must be consistent with the status of the family and also consistent with need of the petitioner. Petitioner is desperate and helpless lady unable to maintain herself and her minor children, therefore, an amount of Rs. 3000/- per month in favour of petitioner No. 2 would be just and reasonable, at this stage. Accordingly, total amount of Rs. 3000/-, as interim maintenance is hereby awarded in favour of the petitioner No. 2 only against the respondent who is directed to pay the same towards the petitioners/applicants from the date of the filing of the application, till the final disposal of the main petition/application. This order or any observation made in this order shall have no effect on the outcome of the main application. This application is accordingly disposed off with respect to petitioner No. 2 who is minor son of petitioner No. 1 and respondent. So far as the interim maintenance of the petitioner No. 1 is concerned will be adjudicated after filing the objections by the respondent and has also been directed to file objections on the next date of hearing."
9. The aforesaid impugned order, i.e., order dated 21st August, 2017 was challenged by the petitioner before the Court of learned Sessions Judge, Rajouri in Revision Petition on the same grounds, which have been taken in present petition, but Court upheld the order impugned and dismissed the Revision Petition on 18th December, 2017, main extract of which is reproduced hereunder:-
CRMC No. 61/2018 a/w IA No. 01/2018 Page 6 of 9 7"10. Even in the revision petition no challenge has been thrown to the paternity of the child. Thus, one there was no challenge to the paternity of the child, the grant of interim maintenance in favour of the minor child on the admission of non applicant and without taking formal objection can by no stretch of imagination be said to be improper, illegal or perverse.
11. Now the only ground which remains for adjudication by this Court is as to whether the grant of interim maintenance of Rs. 3000/- in favour of minor child is excessive and beyond the earning capacity of the revisionist herein. Admittedly, minor child, i.e., applicant No. 2 before Court below is aged above 3 years. He will not only require maintenance for his food, clothing, medicines and vaccination but also will require the expenses for his admission fee and monthly fee in the School. Revisionist being father is legally and morally bound to provide for maintenance to the applicant No. 2 minor child to meet such needs. Though in the order impugned learned Magistrate has not stated anything about the income of the revisionist but it appears that learned Magistrate while fixing the quantum of interim maintenance has considered the income of the revisionist pleaded by the applicants in the application.
12. Keeping in view the fact that revisionist had admittedly worked in Saudi Arabia in past and further is not suffering from any deformity or ailment and is able bodied person, the grant of Rs. 3000/- per month as interim maintenance to minor child cannot be said to be excessive in view of the present day inflation, rise in cost of living index etc
13. Accordingly, I do not see any merit in this revision petition and, therefore, no interference with the impugned order under the revisionary powers is warranted. Revision petition is dismissed. Lower Court Record be returned with a copy of this order. Revision petition be consigned to records after its due completion. Parties are directed to appear before the Court below for further proceedings on 06.01.2018."
10. Section 488 Cr.P.C. is a social legislation, strict law of pleading are not applicable. Procedure is of summary nature; purpose of interim relief is that petitioner may survive up to final adjudication of petition U/s 488 Cr.PC, which takes long time to finalize. Maintenance is right which accrues to wife/children against husband/father. It is not only a moral obligation but also a legal duty of husband/father to provide maintenance to wife/children. The primary object for granting interim maintenance to a deserted and destitute wife/children is for ensuring that they should not be left beggared. The remedy provided U/s 488 Cr.PC is a summary remedy for securing reasonable sum by way of interim maintenance.
CRMC No. 61/2018 a/w IA No. 01/2018 Page 7 of 9 811. The argument addressed that application filed by respondent No.1 for interim maintenance under Section 488 Cr.P.C., she is not entitled for the same because of the reason that she had left the matrimonial house on her own and despite making every efforts, she did not come back to her matrimonial house and after waiting for a long period of time, she has been divorced by Divorce Deed dated 14th July, 2017, as such respondent No. 1 is not entitled for any maintenance from the petitioner, this argument at this stage is not tenable, because it is a fact to be decided during trial. The court below has granted interim maintenance to child only. Further deed of divorce would reveal that it is in the form of triple talaq, which has already been declared un-constitutional by Apex Court. Another argument that order impugned has been passed without giving any opportunity to the petitioner for filing objections before the Court below, this argument is also not tenable because petitioner has not denied that respondents are his wife and son.
12. Another argument that interim maintenance is very high and petitioner is a labourer by profession, whose parents are also dependent upon him, as such awarding interim maintenance of Rs. 3000/- in favour of respondent No.2, is liable to be set aside/quashed. This argument is also not tenable, because quantum of interim maintenance @ Rs.3000/- pm is not excessive in nature in present set of circumstances, because maintenance also includes money required for food, shelter, education, medicines clothing etc. Now-a-days maintenance to wife and minor children requires much attention due to inflation in prices of goods required for day to day needs and effect of globalization on economy of nation and their impact on life of people.
13. Whenever application for interim maintenance is filed, the Court should dispose of the same most expeditiously. The maintenance cases must take precedence over matters of property or money claims. Award of interim CRMC No. 61/2018 a/w IA No. 01/2018 Page 8 of 9 9 maintenance must be decided preferably within one month from the date of filing the application.
14. It is fact that generally interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife /children is likely to be made only thereafter, so it is just and fair that the revisional court should insist on the deposit of the interim maintenance payable in terms of the order under challenge as a pre- condition to entertaining the revision petition. Otherwise a disobedient husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.
15. Keeping in view the facts and circumstances of the case, this petition is dismissed with costs of Rs.5000/-, which will be paid by the Petitioner to Respondent No.1 within four weeks from today. The learned JMIC will ensure that the costs is paid to respondent no.1.
(Sanjay Kumar Gupta) Judge Jammu 28.09.2018 Ram Krishan CRMC No. 61/2018 a/w IA No. 01/2018 Page 9 of 9