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JAMMU AND KASHMIR HIGH COURT
ALI MOHD. MAGREY, J.
Masrat Begum – Appellant
Vs.
Abdul Rashid Khan & Another – Respondents
561-A Cr. P.C. No. 110 of 2010
Decided On : 03/03/2014
CRIMINAL REVISION - MAINTENANCE - INTERIM MAINTENANCE - GRANT OF - CONDITIONS PRECEDENT - RELATIONSHIP OF HUSBAND AND WIFE SUBSISTING - PERSONAL LAW GOVERNING THE PARTIES - DIVORCE - PROOF - TALAQNAMA - EXECUTION AND ATTESTATION - SUFFICIENCY OF MATERIAL FOR PRIMA FACIE FINDING - JURISDICTION OF MAGISTRATE - SECTION 488, CR. P.C. - SECTION 2, JAMMU AND KASHMIR MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 2007 - SECTION 125, CODE OF CRIMINAL PROCEDURE, 1898 - SECTION 7(2)(A), FAMILY COURTS ACT, 1984 - SECTION 4(D), SHRI PARTAP JAMMU AND KASHMIR LAWS CONSOLIDATION ACT, SAMVAT 1977 (1920 AD) - SECTION 1552 TO 1557, AMEER ALI'S COMMENTARIES ON ' MAHOMMEDAN LAW' (FIFTH EDITION) - SECTION 682, RADD-UL-MUHTAR, VOL. II - SECTION 683, RADD-UL-MUHTAR, VOL. II - SECTION 684, RADD-UL-MUHTAR, VOL. II - SECTION 261, MULLA'S PRINCIPLES OF MAHOMEDAN LAW (19TH EDN. BY MR. HIDAYATULLAH, 1990, ELEVENTH REPRINT, 2001) - SECTION 262, MULLA'S PRINCIPLES OF MAHOMEDAN LAW (19TH EDN. BY MR. HIDAYATULLAH, 1990, ELEVENTH REPRINT, 2001) - SECTION 72-73, HEDAYA, COMMENTARY ON ISLAMIC LAWS BY SHYAKH BURHANUDDIN ABU BAKR-AL-MARGHINANI, TRANSLATED BY CHARLES HAMILTON - SECTION 26, MOHAMMAD NASEEM BHAT V. BILQUEES AKHTER, 2012 (4) JKJ 318 - SECTION 27, MOHAMMAD NASEEM BHAT V. BILQUEES AKHTER, 2012 (4) JKJ 318 - SECTION 3, AMAD GIRI V. MST. BEGHA, AIR 1955 J&K 1 - SECTION 4, AMAD GIRI V. MST. BEGHA, AIR 1955 J&K 1 - SECTION 16, SHAMIMA ARA V. STATE OF U.P., AIR 2002 SC 3551 - SECTION 6, BHARAT PETROLEUM CORPORATION LTD. V. N. R. VALRAMANI, AIR 2004 SC 4778 - SECTION 6, PUNJAB NATIONAL BANK V. R. L. VAID, AIR 2004 SC 4269 - SECTION 6, PARASA RAJA MANNKIYALA V. STATE OF A.P., AIR 2004 SC 132
Fact of the Case:
The petitioner, a Muslim woman, filed an application under Section 488 of the Code of Criminal Procedure (CrPC) in the Court of Chief Judicial Magistrate, Handwara, against respondent No. 1, her husband, seeking maintenance for her and the minor child. The petitioner alleged that respondent No. 1 had deserted and neglected her and the minor child, and had refused to maintain them. Respondent No. 1 resisted the petition on the ground that he had divorced the petitioner by virtue of a deed of divorce executed by him on 30-7-2009 and that a copy thereof was posted by him to the petitioner receipt whereof is available with him. The respondent further stated that the relationship as husband and wife between him and the petitioner had ceased and that the petitioner was not entitled to any maintenance from him. The learned trial Magistrate, vide order dated 16-12-2009, relying on the decision of the Supreme Court in Shamima Ara v. State of U.P., AIR 2002 SC 3551, and observing, inter alia, that respondent has yet to prove the factum of divorce and communication thereof by leading evidence, and that mere plea taken in the written objections would not suffice allowed the application for grant of interim maintenance allowance and ordered the respondent to pay Rs. 1,000.00 each to the petitioner and the minor child by 10th of every month. The order of interim allowance was ordered to operate from the date of the application. The aforesaid order dated 16-12-2009 passed by the learned Chief Judicial Magistrate, Handwara, was called in question by respondent No. 1 hereinbefore the learned Principal Sessions Judge, Kupwara, in Criminal Revision No. 30/Revision. The learned Principal Sessions Judge, Kupwara, vide order dated 28-7-2010, set aside the order dated 16-12-2009 so far as it pertained to grant of interim maintenance in favour of the petitioner herein with direction to the learned Magistrate to pass fresh orders in accordance with law regarding the claim of maintenance by the petitioner herein. The learned Principal Sessions Judge in its detailed order has, inter alia, recorded that the matter of grant of interim maintenance in favour of the petitioner requires fresh examination by the learned trial Magistrate and has directed the trial Magistrate to pass fresh orders in accordance with law regarding the claim for interim maintenance after affording an opportunity to the parties to produce evidence of summary nature for passing the provisional remedy. The order dated 16-12-2009 that had been passed by the learned Judicial Magistrate has thus been set aside. It is this order dated 28-7-2010, passed by the learned Principal Sessions Judge, Kupwara, which is under challenge in this petition filed under Section 561-A, Cr. P.C.
Finding of the Court:
The Court held that the plea of a previous divorce taken in the written statement by itself cannot be taken as effecting divorce. Essentially, therefore, the plea of a previous divorce has to be proved, especially so when it is not addressed to the wife. The Court further held that the grant of interim maintenance is hedged in certain limitations and it is settled that for seeking maintenance and provisions during the period of Iddat, a divorcee would have to file a regular civil suit. The Court also held that the validity or otherwise of the divorce pleaded does not become the subject-matter of the proceedings. Validity or otherwise of the divorce can be determined only in a regular civil suit; not in a summary proceeding under Section 488, Cr. P.C. where the factum of divorce, if pleaded is to be substantiated by evidence of summary nature. In other words, determination of the question of grant or otherwise of maintenance would depend upon the determination of existence of the relationship on the basis of which it is claimed and when the relationship is pleaded to have ceased, the claim would hinge on substantiation of the plea of divorce.
Issues: 1. Whether the plea of a previous divorce taken in the written statement by itself can be taken as effecting divorce? 2. Whether the grant of interim maintenance is hedged in certain limitations? 3. Whether the validity or otherwise of the divorce pleaded becomes the subject-matter of the proceedings? 4. Whether the validity or otherwise of the divorce can be determined in a regular civil suit? 5. Whether the determination of the question of grant or otherwise of maintenance would depend upon the determination of existence of the relationship on the basis of which it is claimed?
Ratio Decidendi: 1. The plea of a previous divorce taken in the written statement by itself cannot be taken as effecting divorce. 2. The grant of interim maintenance is hedged in certain limitations. 3. The validity or otherwise of the divorce pleaded does not become the subject-matter of the proceedings. 4. The validity or otherwise of the divorce can be determined only in a regular civil suit. 5. The determination of the question of grant or otherwise of maintenance would depend upon the determination of existence of the relationship on the basis of which it is claimed.
Final Decision: The petition was dismissed along with the connected Cr. M.P. Interim order, if any subsisting, was ordered to be vacated. The Chief Judicial Magistrate was directed to explore the possibility of deciding the matter within a period of two months from the date of the order.
This petition under Section 561-A, Cr. P.C. has been filed by the petitioner seeking quashing of order dated 28-7-2010 passed by the learned Principal Sessions Judge, Kupwara, in Criminal Revision, File No. 30/Revision, arising out of the order dated 16-12-2009 passed by the learned Chief Judicial Magistrate, 1st Class, Handwara, granting interim maintenance of Rs. 1,000.00 each in favour of the petitioner herein and respondent No. 2. The revision petition had been filed by the respondent herein on the ground that he has divorced his wife, petitioner herein, by a written document prior to the date of the filing of the petition for maintenance before the learned Magistrate and, therefore, the petitioner was not entitled to any maintenance from him.
2. The marriage between petitioner and respondent No. 1 had taken place somewhere in November, 2000. Out of the wedlock, a male child, namely, Saqleen Rashid, Proforma respondent No. 2 herein, was born.
3. On 4-8-2009, the petitioner filed an application under Section 488 of the Code of Criminal Procedure in the Court of Chief Judicial Magistrate, Handwara, against respondent No. 1 seeking maintenance for her and the minor child. In the said application, the petitioner, inter alia, stated that she is the legally wedded wife of respondent No. 1 herein and that for the last one year respondent No. 1 had deserted and neglected her and the minor child, and had refused to maintain them. She along with the minor son was living at her parental home. Along with the aforesaid petition, the petitioner also filed an application for grant of interim maintenance.
4. On being summoned, respondent No. 1 herein appeared before the learned trial Magistrate and resisted the petition on the ground that he had divorced the petitioner by virtue of a deed a divorce executed by him on 30-7-2009 and that a copy thereof was posted by him to the petitioner receipt whereof is available with him. The respondent in his objections further stated that the relationship as husband and wife between him and the petitioner had ceased and that the petitioner was not entitled to any maintenance from him. In support of his aforesaid statement, respondent No. 1 also attached a photocopy of the divorce deed with his objections. The reasons which compelled him to divorce his wife are mentioned in the objections as well as in the divorce deed. It is stated that the petitioner- s behaviour, right from the inception of the marriage, with him and his family was quarrelsome and that the petitioner would leave his (respondent- s) house without informing him. The matter relating to her such conduct and behaviour was brought to the notice of the relatives of the petitioner as well. Besides, the matter was also referred to the Baradari and many meetings were conducted, but the petitioner did not mend her ways.
5. The learned trial Magistrate, vide order dated 16-12-2009, relying on the decision of the Supreme Court in Shamima Ara v. State of U.P., AIR 2002 SC 3551, and observing, inter alia, that respondent has yet to prove the factum of divorce and communication thereof by leading evidence, and that mere plea taken in the written objections would not suffice allowed the application for grant of interim maintenance allowance and ordered the respondent to pay Rs. 1,000.00 each to the petitioner and the minor child by 10th of every month. The order of interim allowance was ordered to operate from the date of the application. The relevant portion of the order passed by the learned Magistrate is quoted hereunder :
' The only argument advanced by ld. Counsel for the respondent is that petitioner No. 1 has been divorced by the respondent prior to the institution of the application, so she is not entitled to maintenance, is not sustainable at this interim stage. Objections admittedly have been filed on 3-12-2009, whereas application was instituted on 4-8-2009 and photocopy of divorce/talak placed on record is subject to strict proof and i
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