Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 529

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SANJEEV KUMAR, J.
Nissar Ahmad Matoo - Petitioner
Versus
Ulfat - Respondent
CRM(M) No. 36 of 2020
Decided On : 05-02-2021

Advocates Appeared:
For the Petitioner: B.A. Khan.
For the Respondent: Manzoor A. Ganai.

The plea of divorce in a petition under Section 488 Cr.P.C. does not absolve the husband of the responsibility to maintain his wife and minor children. Maintenance awarded under Section 20 of the D.V. Act could be in addition to an order of maintenance made under Section 488 Cr.P.C., but the courts must consider the maintenance granted under one provision while granting the same under the other provision.

Headnote:
Maintenance - Divorce - Section 488 Cr.P.C. - Section 20 of the D.V. Act - [Section 488 Cr.P.C., Section 20 of the D.V. Act] - The court discussed the entitlement of the respondent to maintenance under Section 488 Cr.P.C. in light of the divorce claimed by the petitioner. It also addressed the interplay between Section 488 Cr.P.C. and Section 20 of the D.V. Act, and the consideration of maintenance granted under one provision while granting the same under the other provision.
Fact of the Case:

The petitioner sought to quash the order of the Revisional Court granting maintenance to the respondent under Section 488 Cr.P.C. The petitioner claimed to have divorced the respondent, while the respondent sought maintenance under Section 488 Cr.P.C. and Section 20 of the D.V. Act. The court analyzed the divorce claim, the entitlement to maintenance, and the interplay between the two provisions.
Finding of the Court:

The court found that the plea of divorce by the husband in a petition under Section 488 Cr.P.C. does not absolve him of the responsibility to maintain his wife and minor children. It also held that maintenance awarded under Section 20 of the D.V. Act could be in addition to an order of maintenance made under Section 488 Cr.P.C., but the courts must take into consideration the maintenance granted under one provision while granting the same under the other provision.
Issues: The issues involved the entitlement to maintenance in the presence of a divorce claim, the interplay between Section 488 Cr.P.C. and Section 20 of the D.V. Act, and the consideration of maintenance granted under one provision while granting the same under the other provision.
Ratio Decidendi: The court established that the plea of divorce in a petition under Section 488 Cr.P.C. does not absolve the husband of the responsibility to maintain his wife and minor children. It also clarified that maintenance awarded under Section 20 of the D.V. Act could be in addition to an order of maintenance made under Section 488 Cr.P.C., but the courts must consider the maintenance granted under one provision while granting the same under the other provision.
Final Decision: The court set aside the order of the Revisional Court and remitted the matter back for reconsideration in light of the observations made. It dismissed the petition seeking to quash the order granting maintenance to the respondent under Section 20 of the D.V. Act.

JUDGMENT :

CRM(M) No. 36/2020

1. This quashment petition filed by the petitioner in terms of Section 482 Cr.P.C. is directed against order dated 31.01.2020 passed by the learned Additional District and Sessions Judge, Srinagar (the Revisional Court) in file No. 06/2019 titled Mst. Ulfat v. Nissar Ahmad Matoo, whereby the Revisional Court has set aside the order of Special Mobile Magistrate (Sub Judge), Srinagar dated 29.07.2019 passed in a petition filed by the respondent along with her two children for maintenance under Section 488 Cr.P.C., insofar as it rejects the claim of the respondent for maintenance.

2. Material facts, as projected by the petitioner in this petition, insofar as these are necessary for determination of the controversy raised, may be noticed briefly.

3. As is claimed, the petitioner and respondent entered into marital tie in the year 2005 according to the Muslim Personal Law and out of their wedlock, twin female issues were born. It is stated that prior to his marriage with the respondent, the petitioner had married one Shabeena in the year 1992, who left for her heavenly abode in the year 1997 due to illness. Out of the aforesaid wedlock also there are two issues, namely, Nazida Nissar and Aaqib Nissar. Both are now major and putting up with the petitioner. The marriage of the petitioner with respondent was, thus, petitioner's second marriage, contracted after the death of his first wife. The petitioner claims that right from the marriage with the respondent, he had been taking best care of the respondent and the children born out of the wedlock, but the treatment of the respondent towards the petitioner was all along unbecoming of a wife. The conciliation efforts made by the petitioner through the intervention of respectable persons known to the families wore no fruits. When all the attempts of conciliation failed, the petitioner was forced to take an unpleasant decision to pronounce divorce against the respondent. It is the stated case of the petitioner that he executed a divorce deed on 06.07.2019 and communicated the same to the respondent through registered post. Annoyed by the communication of divorce by the petitioner, the respondent filed a complaint under Section 12 of the J&K Protection of Women from Domestic Violence Act ('D.V. Act'). The trial Magistrate passed an interim order directing the petitioner to pay interim maintenance of Rs. 4000/- each in favour of minor daughters vide order dated 14.07.2018. The petitioner responded to the complaint and filed his detailed objections. The petitioner also moved an application in terms of Section 20 of the D.V. Act seeking modification/cancellation of order dated 14.07.2018. In the meanwhile, the respondent also filed an application under Section 25(2) of the D.V. Act. Both the applications were considered by the trial Magistrate, who vide its order dated 28.08.2019 dismissed the application filed by the petitioner and made the interim order dated 14.07.2019 absolute. However, application filed by the respondent under Section 20 of the D.V. Act was allowed and the respondent was granted Rs.5,000/- monthly interim maintenance. The petitioner has challenged order dated 28.08.2019 by way of an appeal, which was assigned to the Court of 3rd Additional District and Sessions Judge, Srinagar. The appellate Court has upheld the order of the trial Magistrate and dismissed the appeal filed by the petitioner vide its order dated 30.09.2019. The order dated 30.09.2019 passed by the appellate Court is subject matter of challenge in a separate quashment petition pending adjudication before this Court.

4. While the quashment petition against order dated 30.09.2019 was pending adjudication before this Court, the respondent filed an application in terms of Section 488 Cr.P.C. before the Court of Special Mobile Magistrate, Srinagar (the 'trial Court'). An interim order was passed by the trial Court on 29.07.2019 directing the petitioner to pay an amount of Rs.3,000/- each