1. Respondent, Mst. Haleema Begum, has filed a petition under section 488, Code of Criminal Procedure (for short the Code) against petitioner, Mohammad Shafi Bhat, seeking an order directing the petitioner to pay her monthly maintenance allowance of Rs. 3000/. She also moved an application for interim maintenance at the rate of Rs. 1000/ per month till final disposal of the main petition.

2. Briefly, respondent has alleged before the trial Magistrate that petitioner has turned her out of his house and refused to maintain her as his wife. She is working as Anganwari Worker in Anganwari Centre on daily wage basis and gets meager wages, which are insufficient to make her both ends meet. She requires more than Rs. 3000/ per month in order to meet her expenses.

3. The petitioner has contested respondent's claim for maintenance on the grounds, firstly, that he has divorced the respondent on 22. 02. 2011 by a "Talaknama" which has been sent to her by registered post on 05.03.2011 and secondly, that the respondent is a working hand as she is working as Anganwari Worker at an Anganwari Center.

4. Learned trial Magistrate by order dated 13. 6. 2011 directed the petitioner to pay interim maintenance at the rate of Rs. 1000/ to the respondent till final disposal of the main petition. Petitioner challenged the said order in a revision before ld. Sessions Judge, Kupwara, but the ld. Sessions Judge by his order dated 30. 5. 2012 dismissed the revision. Petitioner has now invoked inherent jurisdiction of this Court under Section 561-A of the Code for setting aside the order passed by ld. Magistrate as well as the order passed by the ld. Sessions Judge.

5. I have heard ld. counsel for the parties, perused the impugned orders and have gone through the record.

6. Petitioner has challenged the impugned orders on the ground, firstly, that respondent is neither destitute nor vagrant as she is employed in Social Welfare Department as a daily wager, working on need basis and drawing salary more than the petitioner and is therefore, is in a position to maintain herself and secondly, that ld. trial Magistrate has ignored the factum of the petitioner having divorced the respondent. It is contended that the respondent has invoked sec. 488 of the Code for settling her personal acrimony with the petitioner, arising out of matrimonial discard with him and thus, impugned orders have caused miscarriage of justice.

7. Learned counsel for petitioner sought to project that ld. trial Magistrate has passed order for interim maintenance without taking into consideration the respondent's income and in total disregard of the respective incomes of the parties. Learned counsel would say that in passing the impugned order, ld. trial Magistrate has failed to exercise its jurisdiction in accordance with sec. 488 of the Code, which has caused miscarriage of justice.

8. Per contra, ld. counsel for respondent would say that the meager wages being received by the respondent as Anganwari Worker are not sufficient to make her both ends meet and petitioner cannot be absolved of his responsibility to provide suitable amount for maintenance to the respondent, who is his wife. It is further contended that learned Magistrate rightly has not refused interim maintenance on the basis of plea of divorce raised by the petitioner. Whether the petitioner has divorced the respondent or the marital relationship has come to an end prior to filing of the application for maintenance involve a question of fact, which petitioner will have to prove by leading evidence.

9. This court in Mohammad Naseem Bhat v. Bilquees Akhter and Anr. 2012(4) JKJ (HC) 318 has laid down the conditions, which a husband pleading divorce in a petition under section 488 of the Code filed by the wife has to plead and prove. Plea of divorce, therefore, can be taken for consideration on the basis of evidence to be led during the enquiry in the main petition and cannot be acted upon while deciding application for interim maintenanc

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