1. The parties to the petition tied marital knot on 4th May, 1997. The relation between the parties was smooth for next three years, till the petitioner went to her parental house in May 2001 to attend marriage ceremony of her brother. The respondent, according to the petitioner neglected her, refused to maintain marital relations with her and to live with her as her husband.

2. Aggrieved with the conduct of the respondent, petitioner on 14.05.2003 approached Chief Judicial Magistrate, Srinagar with an application under Section 488 Cr.PC for a direction to the respondent to pay maintenance allowance of Rs. 4,000/- per month to the petitioner from the date the petitioner was neglected by him. The petitioner's case before trial Magistrate was that the respondent was a Government employee working as Farash in Estates Department of State Govern#31;ment and was drawing salary of Rs. 8,000/- per month. The respondent in his objections while admitting to have contracted marriage with the petitioner on 4th May, 1997, pleaded that the petitioner had left his house of her own, without his permission and that the petitioner failed to return to her marital home despite repeated requests including a notice issued by the respondent through his Counsel asking the petitioner to resume marital obligations. The respondent denied to have refused to maintain the petitioner and to perform obligations under the marriage contract. The respondent insisted that disappointed by the conduct of the petitioner he divorced her vide Divorce Deed dated 22nd April, 2003 and even paid maintenance of Rs. 3,000/- to the petitioner for Iddat Period. The respondent also ques#31;tioned jurisdiction of the trial Magistrate to entertain and deal with the application.

3. The parties led evidence in support of their respective stands.

4. The trial Magistrate, held the respondent to have failed to prove the Divorce Deed, claimed to have been executed on 22nd April, 2003 and that the Divorce Deed was served on the petitioner and brought to her notice. The trial Magistrate relying on the judgement of this Court reported at 2005 (DSLJ 341,2010 (4) JKJ [HC] 398 as also law laid down in AIR 2002 SC 3551 held the respondent to have failed to prove that the marriage between him and petitioner was dissolved on the date the application under Section 488 Cr.PC was filed. The petitioner was found ready and willing to go to live with the respondent as his legally wedded wife—an offer spurned by the respondent. The trial Magistrate, against the said back drop allowed the application and directed the respondent to pay an amount of Rs. 1600/- per month as maintenance allowance to the petitioner.

5. The respondent not satisfied with the trial Magistrate, order dated 4th November, 2006, questioned it in a criminal revision before 1st. Additional Sessions Judge, Srinagar. The respondent pleaded that the case set up by him and the evidence adduced was not appreciated in right perspective and that the trial Magistrate's order was liable to be set aside. The Revisional Court allowed the revision petition and set aside trial Magistrate's order dated 4th November, 2006. The Revisional Court took the view that the divorce was not pronounced during the proceedings and case law relied upon by the trial Magistrate, had no application to the case before the Court in as much as the reported cases envisioned a case where the husband faced with an application for grant of maintenance by his wife, divorces the wife during pendency of an application for grant of maintenance. It was further held that as the divorce was in writing and served through registered post, the relation of husband and wife between the parties had came to an end and parties ceased to be husband and wife. The claim of the petitioner for grant of maintenance was held to be restricted to the period of Iddat worked outby the Court as Rs. 5350/-. The revision petition was accordingly allowed and trial Court order set aside.

6. Aggrieved, w

Click Here to Read the rest of this document