The plea of divorce raised by the husband does not automatically entitle him to refuse interim maintenance to the wife. The husband has to prove the factum of divorce.

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 respondens 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 u/s 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 Vs. State of UP reported in AIR 2002 SC 3551 that the plea

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