The court upheld the entitlement to maintenance under Section 125, emphasizing that divorce claims must be substantiated in main proceedings.

JUDGEMENT

1. The application under Section 125 of Cr.PC was preferred by the respondent before Sub Judge/Special Mobile Magistrate, Anantnag (hereinafter referred to as the trial court). The application was considered by the learned trial court and vide order dated 10.05.2022, maintenance was granted in favour of the respondent/applicant to the tune of Rs. 3500/- per month till disposal of the main application. The petitioner herein filed revision against the impugned order dated 10.05.2022 passed by the trial court before court of Principal Sessions Judge, Anantnag (hereinafter referred to as the revisional court). The revisional court vide impugned order dated 01.03.2023 upheld the order of the trial court meaning thereby the respondent was held entitled to Rs. 3500/- per month from the respondent.

2. The present petition has been filed under Section 482 of Cr.PC for quashment of the orders passed by the trial court as well as the revisional court on the ground that both the courts have not dealt with the plea taken by the petitioner before both the courts. The precise submission of learned counsel for the petitioner is that the parties to the petition had divorced by mutual consent and that respondent was not unilaterally given divorce by the petitioner and respondent herein in pursuance to the said arrangement was to be provided the amount as mentioned in the document which is annexed with the present file. Both the courts were led away by mere fact that divorce granted to the respondent is required to be proved in the main petition. The respondent did not file affidavit as in terms of the judgment passed by Hon'ble Apex Court in case titled [1]Rajnesh v. Neha reported as [2][(2021) 2 SCC 334] is also pleaded.

3. The respondent has appeared through her counsel.

4. The argument of learned counsel for the respondent is that there is no illegality in the order passed by the trial court as well as the revisional court in the application filed by respondent under Section 125 of Cr.PC. Both the courts have rightly held that respondent is entitled to claim maintenance unless she gets married and further that plea of divorce taken by the husband in the written statement is required to be proved in the main proceedings. He has referred to judgment titled Hilal Ahmad Lone Vs. Gulshana Begum reported in 2021 (1) JKJ 215[HC] in support of his contention.

5. The argument raised by learned counsel for the petitioner is that both the courts have not taken care of the plea raised by the petitioner qua the divorce in their respective proceedings. It is not that the petitioner had granted divorce to the respondent but it was the result of the mutual consent and the same gets reflected in the documents placed on record by him.

6. The filing of the petition under Section 125 of the Code of Criminal Procedure is to bring relief to the petitioner. The court is not to get swayed by mere filing of the petition on behalf of the applicant unless the facts and circumstances of the case are convincing enough so as to entitle the petitioner for interim relief.

7. This Court has gone through the application filed by the respondent under Section 125 of Cr.PC wherein it has been pleaded by the petitioner that the respondent was forced by the petitioner to appear before the Al Jamia Sabeel ul Huda , Bemina and made to sign few documents that were purportedly with regard to the divorce between the parties to this application.

8. The trial court while granting interim maintenance has not specifically dealt with the objection filed by the respondent to the divorce having taken place by mutually between the parties at Al Jamia Sabeel ul Huda Bemina. The revisional court, however, has referred to the objections filed by the petitioner herein regarding the plea taken by the petitioner of the mutual consent as pleaded by the petitioner (respondent in a petition under Section 125 Cr.PC). The revisional court has held that even if the divorce has taken place between the p