561-A Cr.P.C. No.38/2010 Page 1 of 5

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

561-A Cr.P.C. No. 38/2010 & connected MPs

Date of decision:-29.12.2017

Mushtaq Ahmed

Vs.

Mst. Firdos Tahira & Anr.

Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For petitioner(s)

: Ms. Veenu Gupta, Advocate.

For respondent (s) : None.

i.

Whether approved for

reporting in Press/Media

: Yes/No/Optional

ii.

Whether to be reported in

Digest/Journal

:

Yes/No

1.

Through the medium of present petition, petitioner seeks quashing of

order dated 09.02.2012, passed by the court of learned 2^nd Additional

Sessions Judge, Jammu in File No. 133-A/Misc. titled Mushtaq Ahmed Vs

Firdos Tahira & another and judgment dated 31.08.2009, passed by the

court of learned Special Mobile Magistrate, Jammu in file No.

06/Complaint titled Firdos Tahira Vs. Mushtaq Ahmed.

2.

It is stated in the petition that the petitioner was married to respondent

No.1 and the respondent No. 2 is the daughter of petitioner. The marriage

between the petitioner and respondent No. 1 has been dissolved by

medium of a divorce deed executed and registered with Notary Public on

01.03.2004 and after dissolution of the marriage, the matrimonial

relations between the parties have ceased. The said divorce has been

given as per Muslim Personal Laws and after the divorce, the petitioner

has paid maintenance to the respondent No. 1 till the period of Idat as is

requirement of the Muslim Personal Law. After the expiry of Idat, the

respondent No. 1 is not entitled to any maintenance from the petitioner

561-A Cr.P.C. No.38/2010 Page 2 of 5

being his divorced wife as per the provisions of Section 488 of Cr.P.C. It

is further stated that the respondent No.1 herein filed a petition for grant

of maintenance under Section 488 Cr.P.C for herself and for her daughter

i.e. respondent No. 2 before the court of learned Special Mobile

Magistrate, Jammu in which evidence adduced by the respondents was

recorded. However, the learned Magistrate did not record the statement of

the petitioner or his witnesses and proceeded ex-parte against the

petitioner on 04.06.2009 despite the fact that the petitioner was present in

the court. The ex-parte Judgment dated 31.08.2009 was announced

against the petitioner by the learned Magistrate whereby the learned

Magistrate granted maintenance to the respondents @ Rs. 3,000/- per

month. Being aggrieved of the Judgment dated 31.08.2009 passed by the

learned Magistrate, the petitioner herein filed a revision petition before

the court of learned 2^nd Additional Sessions Judge, Jammu titled Mushtaq

Ahmed Vs. Firdos Tahira & another. The said revision petition has been

dismissed by the learned 2^nd Additional Sessions Judge, Jammu vide

order dated 09.02.2010 on account of non-payment of 75% of the arrears

of maintenance by the petitioner. It is further stated that the petitioner

maintains the present petition on the following grounds:-

a) That the Judgment dated 31.08.2009 and the order dated

09.02.2010 passed by the learned courts below are contrary to the

provisions of law, therefore, the same deserve to be quashed.

b) That the order is bad in the eyes of law and is required to be

quashed on the ground that the revision petition which was filed by

the petitioner cannot be decided under law in default but has to be

decided on merits alone as the revision petition is a remedy of law and

not of fact. The learned Court below has committed serious and grave

error while dismissing the revision petition filed by the petitioner. On

this ground alone the order impugned dated 09.02.2010 cannot

sustai