A husband must prove specific conditions for a valid divorce under Shariat Law to escape maintenance obligations, including reconciliation efforts and adherence to prescribed procedures.

JUDGMENT :

1. Setting-aside of the Order dated 24th October 2018, passed by the court of Additional Sessions Judge, Pulwama (for short “Revisional Court”) in a Revision Petition titled as Mst. Hameeda v. Fayaz Ahmad Wani, is sought for by petitioner on the grounds mentioned in instant petition.

2. I have heard learned counsel for parties and considered the matter.

3. Respondent (Mst. Hameeda) filed an application under Section 488 of the Code of Criminal Procedure (J&K) for maintenance way back in the year 2009, before the court of Judicial Magistrate 1st Class (Munsiff) Pulwama (for short “Trial Court”). The said application was decided vide ex parte judgement dated 14th December 2009. Revision against ex parte judgement was preferred, which was, however, dismissed on 9th August 2012. A petition under Section 561-A, Cr.P.C., bearing 561-A no.185/2012 was preferred before this Court, in which an order dated 3rd July 2013 was passed directing the Trial Court to decide the application under Section 488 Cr.P.C. on merits after providing opportunity of hearing as well as recording evidence of either side.

4. The Trial Court vide order/judgement dated 5th February 2018 dismissed respondent’s application under Section 488 Cr.P.C. observing that relationship between parties did not exist as spouse.

5. Aggrieved of Trial Court order dated 5th February 2018, respondent filed a Revision. The Revisional Court vide judgement dated 24th October 2018 set-aside Trial Court order dated 5th February 2018, directing petitioner to pay Rs.3000/- per month to respondent as maintenance under Section 488 Cr.P.C. from the date of application, which is 25th August 2009, except the amount already paid as interim maintenance. Petitioner is aggrieved of this judgement. Hence this petition.

6. Learned counsel for petitioner would contend that the Revisional Court has not considered and appreciated facts and circumstances of the case in its right perspective. The Revisional Court has not taken note of the fact that the Trial Court has passed order 5th February 2018 after full dress trial and discussion of case projected by the parties and evidence adduced by them and after it found that respondent has already been divorced which has been proved by petitioner beyond any shadow of doubt inasmuch as intention of petitioner to divorce is very clear. It is also stated by him that reconciliation efforts and reasonable cause for divorce has been proved and what is held by the Supreme Court in the case of Shayara Bano v. Union of India, AIR 2017 SC 4609, is about instant divorce but the same is not the position in the present case as petitioner had not given triple talak.

7. Petitioner has placed on record copy of Talaknama as Annexure A. penultimate paragraph thereof reveals that petitioner in order to put an end to the wedlock has made three pronouncements of Talak, thereby declaring that he has divorced her and relieved her out of the wedlock. According to petitioner, he has conveyed Talaknama to respondent. It may be made clear here that such a practice in law is deprecated.

8. The issue that arises for consideration is whether the proceedings under Section 488 Cr.P.C. for maintenance before the Trial Court can be quashed because petitioner pleads that he has divorced his wife. Such a plea is not acceptable. In Mohammad Naseem Bhat v. Bilquees Akhter and another, (2012) 4 JKJ 318, a lucid judgement has been given by a Bench of this Court. Paragraphs 08 to 28 are important to be reproduced hereunder as it also takes care of all the issues which have been raised by petitioner in the instant writ petition:

“8. Whether a Muslim husband has an absolute and unqualified power to pronounce divorce on his wife and wriggle out of his obligations under the marriage contract? The fate of the present revision petition hinges on answer to this question. It needs to be pointed out at the outset that a Muslim in the matters of marriage, divorce, adoption, maintenance and inheritance e