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2017 Supreme(J&K) 791
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJAY KUMAR GUPTA, J.
Mohd. Akram - Appellant
Versus
Mst. Famida Naz and Anr. - Respondent
561-A Cr.P.C. No. 400 of 2017, MP No. 01 of 2017
Decided on : 22-09-2017
Advocate Appeared:
For the Appellant :Mr. S.H. Rather, Advocate.
For the Respondents:Mr. A.M. Malik, Advocate.
The plea of divorce taken by the husband does not disentitle the claimant-wife for interim maintenance under Section 488 Cr.P.C, and Section 488 of Cr. P.C is applicable to Muslims, irrespective of their personal laws.
Headnote:
Maintenance - Divorce - 488 Cr.P.C - 561-A Cr.P.C - AIR 2002 SC 3551 - 2014 (3) JKJ 1 - 2014 (4) JKJ (HC) 3 - 2017 (2) JKJ (HC) 510
Fact of the Case:
The petitioner seeks quashment of an order for payment of maintenance to his former wife and minor child. The petitioner had divorced his first wife and subsequently married the respondent. The respondent filed a petition seeking maintenance under Section 488 Cr.P.C, which was initially declined but later granted by the Sessions Judge.
Finding of the Court:
The Court held that the plea of divorce taken by the husband in objections to a petition under Section 488 Cr.P.C does not disentitle the claimant-wife for interim maintenance. The Court also emphasized the applicability of Section 488 of Cr. P.C to Muslims, irrespective of their personal laws.
Issues: The main issue was whether the plea of divorce disentitles the claimant-wife for interim maintenance under Section 488 Cr.P.C.
Ratio Decidendi: The Court found that the purpose of granting interim maintenance is to ensure the survival of the claimant-wife until the final adjudication of the petition under Section 488 Cr.P.C. The Court also emphasized the applicability of Section 488 of Cr. P.C to Muslims, irrespective of their personal laws.
Final Decision: The petition seeking quashment of the order for maintenance was dismissed, and the order for payment of maintenance to the former wife and minor child was upheld.
1. In this petition, the petitioner seeks quashment of order dated 30th June, 2017 passed by the learned Principal District and Sessions Judge, Poonch in File No. 32/Revision titled, “Mst. Famida Naz and others Vs. Mohd. Akram”, by virtue of which, Revision Petition filed by the respondents herein against the order dated 22nd April, 2017 passed by the Sub-Judge Special Mobile Magistrate, Poonch, has been accepted. It has been stated that order impugned is illegal and against the spirit of judgment passed by this Court in case titled, “Masrat Begum Vs. Abdul Rashid Khan and others” reported in 2014 (3) JKJ 1 (561-A Cr.P.C. No. 110/2010).
2. Before adverting to the grounds of challenge, a brief factual matrix of the case is as under:
3. The petitioner got married with one-Tazeem Akhter D/o Mohd. Din way back in the year 1999 under the Muslims Personal Law and out of the said wedlock, three issues (two sons aged about 16 years and 14 years respectively and one daughter aged about 8 years) were born. The wife of the petitioner, namely, Tazeem Akhter died on 27th October, 2010. After the death of wife of the petitioner contracted second marriage with respondent No. 1, namely, Famida Naz in the year 2011. The marriage of respondent No. 1 was contracted primarily for the welfare of the children, for which respondent No. 1 agreed to provide all sorts of love and affection to the children of the petitioner. Out of the aforesaid wedlock with respondent No. 1, respondent No. 2, namely, Noreen Fatima (minor) was born. Initially the behavior of respondent No. 1 was cordial towards the petitioner as well as his children from earlier wife, but with the passage of time, the attitude and conduct of respondent No. 1 became so cruel that she used to taunt the children of the petitioner and even started abusing and beating them on one pretext or the other. Petitioner always tried to persuade respondent No. 1 to not pollute the peaceful atmosphere of the family and to create unnecessary scene, but the respondent No. 1 did not mend her ways. The respondent No. 1 used to demand divorce from the petitioner, as she wanted to dissolve her marriage with the petitioner and faced with the circumstances, when petitioner left with no other alternative and failed in all his efforts, dissolved the marriage with respondent No. 1 with a Deed of Divorce (Annexure-A) dated 18th January, 2017.
4. Respondent No. 1, who is ceased to be legally wedded wife of the petitioner, cooked a story and filed a false and frivolous petition under Section 488 Cr. P.C, by virtue of which, she sought maintenance from the petitioner for herself as well as for respondent No. 2 before the Court of Sub Judge Special Mobile Magistrate, Poonch, in which the petitioner appeared and filed the detailed objections to the aforesaid petition u/s 488 Cr. P.C. The said petition is still pending disposal before the Sub Judge Special Mobile Magistrate, Poonch.
5. Alongwith petition u/s 488 Cr.P.C, respondent No.1 also filed an application for interim relief, in which also the petitioner filed his reply, objecting the ground of interim maintenance in favour of respondent No. 1 amongst other grounds, of her having been ceased to be the legally wedded wife of the petitioner. The application for the grant of interim maintenance came to be disposed of by the Sub Judge Special Mobile Magistrate, Poonch vide order (Annexure-C) dated 22nd April, 2017, in which the Sub Judge Special Mobile Magistrate, Poonch after returning prima facie finding that respondent No. 1 herein ceased to be legally wedded wife of the petitioner in view of Deed of Divorce dated 18th January, 2017, declined her maintenance.
6. However, in so far as respondent No. 2 is concerned, the Sub Judge Special Mobile Magistrate, Poonch directed the petitioner herein to pay interim maintenance @ 1000/- per month to respondent No. 2 through her mother from the date of presentation of application for interim maintenance.
7. Respondents ag
