IMPORTANT POINT : For a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that divorce is validly pronounced in accordance with Muslim law but he has also to show that divorce has been communicated to wife.

JUDGMENT :

1. The petitioner has filed the instant petition under Section 482 of the Cr.P.C. challenging order dated 15.04.2019 passed by learned Chief Judicial Magistrate, Budgam, whereby, in a proceeding under Section 488 of the J&K Cr.P.C., the learned Magistrate has granted a monthly interim maintenance to the tune of Rs.2000/ to respondent No.1 and Rs.1500/ to respondent No.2. Challenge has also been thrown to order dated 11.12.2019 passed by learned Sessions Judge, Budgam, whereby, while dismissing the revision petition against the impugned order passed by the learned Magistrate, the learned Sessions Judge has upheld its validity.

2. Respondent No.1 claims herself to be the wife and respondent No.2, claims to be the daughter of the petitioner. They filed a petition under Section 488 of the J&K Cr.P.C. before the learned trial Magistrate alleging therein that the petitioner has neglected and refused to maintain them. The petitioner herein filed his objections to the application and besides urging other grounds, he has submitted that in terms of document dated 10.01.2019 issued by Anjuman Sharie Shiaan, Jammu and Kashmir, responded No.1 herein has been divorced. The learned trial Magistrate while passing the impugned order granting interim maintenance in favour of the respondents, observed that the question whether the petitioner has pronounced Talaq upon respondent No.1 is a factual issue and the same can be determined only after evidence is led. Till such time, the learned trial Magistrate, granted interim maintenance in favour of both the respondents.

3. The impugned order passed by the learned trial Magistrate was challenged by the petitioner by way of a revision petition before Principal Sessions Judge, Budgam, on the ground that a divorced Muslim wife is not entitled to maintenance and, as such, respondent No.1 herein could not have been granted interim maintenance by the learned trial Magistrate. The Revisional Court while passing the impugned order upheld the validity of the order passed by the learned Magistrate and it was observed that validity of the communication dated 10.01.2019 can be decided only after the trial of the case and till that time, respondent No.1 cannot be left in the state of vagrancy.

4. The petitioner has challenged the impugned orders passed by the courts below through the medium of instant petition primarily on the ground that a divorced Muslim wife is not entitled to maintenance in terms of the provisions contained in Section 488 of the J&K Cr.P.C. and, as such, even interim maintenance cannot be granted in her favour.

5. I have heard learned counsel for the parties and perused the impugned orders and the material on record.

6. Learned Senior counsel appearing for the petitioner while arguing that respondent No.1, having been divorced by the petitioner in terms of communication dated 10.01.2019 issued by Anjuman Sharie Shiaan J&K, is not entitled to any maintenance from the petitioner, has relied upon the ratio laid down by this Court in the judgments delivered in the case of Bashir Ahmad vs. Mst. Roshni and others, 1995 SriLJ 255, Riaz Ahmad vs. Suriya Begum, 2017(1) JKJ 85, and Sheikh Mohammad Shafi vs. Mehmooda, 2018(1) SLJ 496.

7. So far as the facts of the case at hand are concerned, it is not in dispute that the petitioner had entered into a wedlock with respondent No.1 and out of this wedlock, respondent No.2 was born. So far as respondent No.1 is concerned, she claims that the marriage between her and the petitioner is still subsisting whereas the petitioner claims that the marriage stands dissolved in terms of communication dated 10.01.2019 of Anjuman Sharie Shiaan, J&K. Both the courts below have held that the question whether the petitioner had divorced respondent No.1 can be determined only after recording of evidence to be led by both the parties during the trial of the case.

8. The question that falls for determination is as to whether production of document dated 10.01.2019 i