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2014 Supreme(J&K) 542
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey, J.
Manzoor Ahmad Sheikh.
Vs.
Naseema Bano and Anr.
561-A Cr. PC No.196/2014 and Cr. MP No.441/2014
Decided on 17.11.2014
Appearing Counsel:
For the Petitioner(s):Mr. M. Moomin Khan, Advocate
For the Respondent(s):Mr. Sajad Ashraf Mir, Advocate
IMPORTANT POINT
– Maintenance is awarded to provide for interim subsistence to those who are entitled for maintenance.
Headnote:Criminal Procedure Code, 1973 – Sections 488 and 561-A – Interim maintenance – Award of – Entitlement of respondent to maintenance would depend upon subsistence of marriage between two – Impugned order to the extent it relates to grant of interim maintenance to respondent set aside – In case Magistrate comes to a prima facie finding that marriage between parties subsists and respondent is entitled to maintenance, Magistrate can order its payment retrospectively from date of impugned order. (Paras 12 and 13)
Result – Petition disposed of with directions.
1. This petition under Section 561-A Cr.P.C. challenges the order dated 21.02.2014 passed by the learned Judicial Magistrate, 1st Class, Baramulla, in proceedings under Section 488 Cr.P.C. initiated by respondent no.1 against the petitioner herein whereby the learned Magistrate has directed the petitioner to pay to petitioner no.1 an interim maintenance of Rs.2,000,00 per month.
2. The case of respondent no.1 before the learned trial court is that the two, respondent no.1 and the petitioner, had entered into a nuptial knot some six years back. Respondent no.2, a four year old female child, is the off spring of the duo. Alleging desertion and neglect by the petitioner, respondent no.1 filed the petition under Section 488 Cr.P.C. seeking maintenance for herself from the petitioner on the ground of her being his legally wedded wife and for the female child having been born out of the wedlock. Coextensive therewith, the respondent filed an application for grant of interim maintenance. The learned Judicial Magistrate by the impugned order has allowed an interim maintenance of Rs.2000.00 to respondent no.1 and Rs.1500.00 to the female child.
3. The petitioner, on appearance before the learned Magistrate, while admitting the liability to maintain his female child, took the plea of prior divorce to respondent no.1 and, thereby, resisted her claim.
4. The learned Magistrate, relying on the Supreme Court judgment m Savitri v. Govind Singh Rawat, (1985) 4 SCC 337, in its impugned order has observed that interim maintenance is awarded to provide for interim subsistence to those who are entitled for maintenance with the object that the applicant should survive during the pendency of the proceedings to enable her to reap the fruits of the final order which may be passed in her favour and that the underlying idea of this provision is to prevent vagrancy and destitution and that this serves as an efficacious social welfare object. Further, relying on another judgment of one of the Coordinate Benches of this Court in Manzoor Ahmad Banday v. Yasmeen Jan, 2006(1) JKJ 102, the learned Magistrate has observed that if interim maintenance will not be granted keeping in view the plea of divorce raised by the husband that will amount to accepting the plea of divorce. Observing so, the learned Magistrate has passed the impugned order.
5. I have heard learned counsel for the parties and considered the matter.
6. Mr. Moomin Khan, learned counsel for the petitioner, submitted that petitioner has divorced respondent no.1 much prior to the initiation of the present proceedings by her by virtue of a deed dated 12.01.2011 which was duly despatched by him to respondent no.1. Learned counsel submitted that since the parties are Muslims and governed by Shariah, a divorced wife under Shariah is not entitled to maintenance. Learned counsel cited and referred to a recent judgment dated 03.03.2014 of this Court rendered in Masarat Begum v Abdul Rashid Khan, 2014 (3) JKJ 1, and submitted that the case is covered by that judgment. On the other hand, learned counsel for the respondent no. 1 denied the plea of divorce taken by the petitioner. He further submitted that the petitioner has taken contradictory stands in that, while in his written-statement before the learned trial Magistrate he has stated that he had divorced his wife in the year 2010, in this petition the stand taken is that respondent no.1 was divorced on 12.01.2011 by virtue of a written deed.
7. In Masarat Begum v Abdul Rashid Khan (supra) this Court, after taking note of the judgments of the Supreme Court in Shamima Ara v. State of UP, AIR 2002 SC 3551, Savitri v. Govind Singh Rawat (supra) and some of the judgments of the Coordinate Benches of this Court, has held as under:—
“ ... [T]he statutory provisions of Sections 488 to 490 Cr.P.C do not contemplate the grant of interim maintenance, and the same has been developed by law of precedent. The concept so developed is strictly restricted by two c
