The provisions of law applicable to the State of Jammu and Kashmir do not allow for interim maintenance to a divorced Muslim woman.

1. This matter was called several times, but nobody appeared. From the perusal of the file, it appears that this reference was made way back in the year 1988. Parties were served and despite service, they are not appearing. The matter has been listed today after having been duly notified in the cause list, even then nobody is present for the parties.

2. This being criminal reference, cannot be dismissed in default for appearance of the parties and is to be disposed of on merits.

3. By pursuing the order of interim maintenance passed by learned Judicial Magistrate, 1st. Class, Billawar in proceedings under Section 488 Cr.P.C. in case titled Mst. Roshni versus Bashir Ahmad, the order of interim maintenance came to be challenged by way of revision petition before learned Sessions Judge, Kathua, who had decided the same by making reference to this Court way back on 9-5-1988.

4. The learned Sessions Judge, Kathua after having heard the parties has recommended for quashment of initiation of proceedings under Section 488 Cr.P. C, and vacation of interim maintenance order.

5. The reasons given by learned Sessions Judge in its order dated 9-5-1988 are cogent and legally tenable. The order of interim maintenance passed under the provisions of Section 488 Cr.P. C. against the petitioner, though not provided under the relevant Section, but nevertheless is being passed as per precedence laid down in this behalf. However, before passing such an order, the Magistrate has no-doubt to see whether the relationship between the husband and wife is existing and wife has claimed for such maintenance for herself or for the children born out of the wedlock. In case the relationship between the parties, being Muslim by religion, is not existing, then the interim maintenance for such petitioner is not possible. So the finding arrived at by learned Session Judge and the recommendations made by him for quashing of the proceedings under Section 488 Cr.P.C. and vacation of the order of interim relief is well founded.

6. The provisions of Section 125 Cr.P.C. (Central Act), which are applicable through-out the country and are not applicable to the State of Jammu and Kashmir, in our State, maintenance proceedings are initiated under Section 488 Cr.P. C. and no-doubt interim relief is also being ordered to destitute/neglected wife/children by judicial precedence, but to a Muslim divorced woman, for whom provisions of law in the centre have also been amended by Incorporation Muslim women (protection of Right of Divorce) Act 1986 and in that context, the Magistrate cannot exercise his jurisdiction under Section 125 Cr.P.C. of the central Act in case of Divorced Muslim wife, unless an application is filed under Section 3(2} of the said Act and parties exercise their option under Section 5 of the Muslim Women (protection of Rights on Divorce) Act of 1986, but the provisions of this Act are also not applicable to the State of Jammu and Kashmir. Hence passing of interim maintenance to a divorced Muslim women is not envisaged under the provisions of law applicable to the State. As such, even the maintenance proceedings which have been initiated by learned Magistrate, as rightly pointed out by learned Sessions Judge, also lacks jurisdiction.

7. Proceedings under Section 488 Cr.P.C. can be maintained by a deserted wife in case the relations are existing between the wife and the husband and is not a divorcee and for a divorcee women, in case she wants maintenance of the period of Iddat, she can do so by moving a civil Court.

8. For the foregoing reasons, this criminal reference made by learned Sessions Judge Kathua is allowed and the proceedings initiated by learned trial Magistrate as also the interim maintenance order passed in the proceedings under Section 488 Cr.P.C. are quashed. The records be transmitted back to the Courts below.

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