The burden of proving divorce lies with the party claiming it, and maintenance orders should consider the specific circumstances of the parties involved.

JUDGEMENT/ORDER :

1. The petitioners have challenged order dated 11.10.2018, passed by learned 3rd Additional Sessions Judge, Srinagar in a revision petition filed against order dated 05.05.2018, passed by learned Judicial Magistrate 1st Class (Judge Small Causes), Srinagar.

2. It appears that the respondent had entered into wedlock with petitioner No. 1. Out of this wedlock petitioner No. 2 was born. Due to matrimonial dispute between the petitioner No. 1 and the respondent, the petitioners started residing separately from the respondent and filed a petition under section 488 J&K Cr.P.C. before the Judicial Magistrate 1st Class (Judge Small Causes) Srinagar. The learned Magistrate after hearing the parties awarded interim maintenance of Rs. 5000/- per month to the petitioner No. 1, the wife and Rs. 7000/- per month to petitioner No. 2, the daughter. The aforesaid order came to be challenged by the respondent before the Court of 3rd Additional Sessions Judge, Srinagar. The learned Sessions Judge set aside the order of learned Magistrate by observing that the petitioner No. 1 has ceased to be the legally wedded wife of respondent, as she has been divorced and regarding the petitioner No. 2, the learned Sessions Judge has observed that the interim maintenance awarded in her favour is on higher side and the matter in this regard was remanded to the learned trial Magistrate.

3. The petitioners have challenged the orders passed by the learned Sessions Judge on the ground that the question whether the petitioner No. 1 was divorced by the respondent is a triable issue and it was not open to the learned Sessions Judge to shut out the case of petitioner No. 1 without any trial, by observing that she has ceased to be the wife of the respondent. It is further contended that the petitioner No. 2 is studying in Kashmir Law College and keeping in view the expenses on her studies, the amount of maintenance granted by the learned Magistrate in her favour is not excessive.

4. Learned counsel for the respondents on the other hand has defended the order of learned Sessions Judge and has contended that a divorcee Muslim wife is not entitled to maintenance and that it was clearly pleaded by the respondent before the learned trial Magistrate that he had divorced petitioner No. 1 twenty five years ago and copy of deed of divorce in this regard was also placed on record before the trial Magistrate.

5. I have heard learned counsel for the parties and perused the record.

6. For testing the merits of the impugned order passed by the learned Sessions Judge it would be apt to reproduce the relevant extracts of the said order:-

"The petitioner submitted vehemently that respondent No. 1 is not the legally wedded wife of the petitioner as she has been divorced 25 years ago. The copy of the divorce deed formulated in year 1995 was also filed with objection before the trial court and copy of the same has been annexed with the objection before the trial court and the said divorce has been personally conveyed to respondent No. 1 by the petitioner but respondent No. 1 has pleaded that she is wife of the petitioner but the petitioner in objection has mentioned that respondent No. 1 is not his legally wedded wife and has been divorced 22 years ago in 1995. In the back drop of petition of respondent No. 1 here into claim maintenance from the petitioner appears to be very doubtful. Had respondent has been divorced during the pending of application under section 488 Cr.P.C. the question would have been different.

Court is generally hesitant in granting interim relief to the party where right of which the enforcement is sought under serious doubt. It is well settled position of the law that in order to sustain the grant of interim maintenance the petitioner must have been prima facie case. The finding of the trial court that the plea taken by the respondent herein cannot be accepted at this stage unless the respondent prove the divorce. The existence of the relationship of the