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2010 DIGILAW 596 (JK)

Arshid Hussain Bhat v. Asia Jan & anr

2010-12-03

MUZAFFAR HUSSAIN ATTAR

body2010
1. Petitioner and respondent No. 1 were legally married under Muslim Personal Law. One son namely Aman was born on 7th June 2001 out of the said wed lock. Petition under section 488 Cr.P.C was filed by the respondent(s) before the Ld trial Court seeking maintenance from the petitioner on the grounds stated in the application. Petitioner filed objections to the said application. Parties were put to trial. Parties lead evidence. During the pendency of the proceedings stand was taken by the petitioner before the Id trial court that respondent No. 1 was divorced on 6th May 2008, as Xerox copy of divorce deed was also placed on record. The petitioner in his statement tendered before Id trial court has stated that he has divorced respondent No. 1 and the divorce deed has been send to her through registered post. One witness namely Haji Gh. Ahmad Kino was produced who has stated that respondent No. 1 has been divorced by the petitioner. 2. This petition is filed on the plea that as the respondent No. 1 has been divorced so petitioner is not liable to maintain her. Heard Id counsel for parties. Considered the matter. 3. Ld counsel for petitioner submitted that as the petitioner divorced the respondent No. 1 on 6th May 2008 which fact he has stated before the court in his statement and is also supported by statement of Haji Gh. Ahmad Kino, the petitioner is not liable to pay maintenance to respondent No.1 Ld counsel in support of his contention referred to and relied upon case titled Showkat Ahmad Lone v. Mst Mumtaza, reported in JKJ[HC] (2) 2009 423 & 2009(II) SLJ 855. 4. Mr. Zahoor A. Shah, Id counsel for respondents, submitted that the factum of divorce was never proved and that the divorce deed is not received by the respondent(s). The Ld counsel also submitted that the plea of divorce taken by petitioner during the proceedings, in view of the law laid down by the Hon'ble Supreme Court in case titled Shamim Ara, appellant v. State of U.P and anr, respondents, reported in AIR 2002 Supreme Court 3551, cannot dissolve the marriage between petitioner and respondent No. 1. The Ld counsel submitted as there was no pronouncement of Talaq by the petitioner, he is liable to pay maintenance to respondent No. 1. 5. The Ld counsel submitted as there was no pronouncement of Talaq by the petitioner, he is liable to pay maintenance to respondent No. 1. 5. The plea of divorce is taken during the proceedings, and such plea could not have been taken earlier because as per petitioner's claim he divorced respondent No. 1 on 6th May, 2008. In order to prove a valid divorce in view of law laid by the Hon'ble Supreme Court in Shamim Ara's case, the petitioner was required to prove certain circumstances which would in law be termed to be divorce and would result in cessation of the relationship between petitioner and respondent No. 1 as husband and wife. 6. The petitioner in the facts and circumstances of this, if he had divorced, the respondent No. 1 was required to life application before Ld trial Judge, wherein he should have sought amendment of the pleadings. In such eventuality, the respondent No. 1 would have also got liberty of meeting the case of the petitioner so taken. As the plea of divorce has been taken orally by petitioner while tendering the statement before the Id trial court, the respondent No. 1 was precluded from controverting the stand taken. Yet another important aspect in view of the law laid down by the Hon'ble Supreme Court in Shamim Ara's case is also missing in this case viz the petitioner before the trial court has not pronounced the Talaq upon respondent No. 1. The words Talaq have not been uttered by him. 7. In Showket Ahmad's case Supra the plea of divorce was taken in the written statement and was proved at the trial of the case. The otherside had advantage of controverting the said plea. The facts of this case are materially different from the case in hand, so the judgment supra cannot be made applicable to this case. 8. The Id counsel for petitioner also submitted that in terms of section 488 Cr.P.C the claim of maintenance can be allowed in favour of wife only when she is unable to maintain herself. The Id counsel also submitted that under Sec. 488 Cr.P.C the respondent No. 1 would be entitled to maintenance only when she is unable to maintain herself. The Id counsel for petitioner also submitted that in terms of section 488 Cr.P.C the claim of maintenance can be allowed in favour of wife only when she is unable to maintain herself. The Id counsel also submitted that under Sec. 488 Cr.P.C the respondent No. 1 would be entitled to maintenance only when she is unable to maintain herself. It is submitted at bar that as respondent No.1 is an employee which fact was proved during the trial of the case, she cannot be said to be unable to maintain herself. The Ld trial Judge has considered the employment of respondent No.1 and also on the material available has held her entitled to maintenance. The order impugned is neither perverse nor bad in law, thus, does not call for any interference. 9. For the above stated reasons, the petition being meritless is accordingly dismissed. 10. The dismissal of revision petition, however, shall not debar the petitioner from proving divorce in accordance with law in appropriate proceedings. In case petitioner succeeds in proving the divorce in appropriate proceedings from particular date, the respondent No. 1 in such eventuality will not be entitled to any maintenance from such date.