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2014 DIGILAW 259 (JK)

Manzoor Ahmad Dar v. Tasleema Akhter (Mst. )

2014-06-28

MOHAMMAD YAQOOB MIR

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1. Petitioner seeks quashment of the order dated 28.12.2013, passed by the Court of 3rd Additional Sessions Judge, Srinagar, in Criminal Revision No.12/R, to the extent it directs the petitioner to pay Rs.2,000/ as interim maintenance to respondent No.1. 2. Respondents, respectively claiming to be the wife and daughter of the petitioner, having been allegedly neglected by the petitioner, have launched proceedings for grant of maintenance under Section 488 Cr. P. C. Vide order dated 26.12.2012, learned Judicial Magistrate 1st Class (3rd Additional Munsiff) has granted Rs.1300/ as interim maintenance in favour of the respondent No.2-daughter whereas with respect to respondent No.1 has observed that fact of the divorce pleaded is a matter for trial, therefore, grant of maintenance in favour of respondent No.1 is deferred till further orders. 3. Dissatisfied with this order, revision petition has been filed by the respondents titled "Tasleema Akhtar & anr v. Manzoor Ahmad Dar" which has been decided by the Court of 3rd Additional Sessions Judge, Srinagar, vide judgment dated 28.12.2013. In pursuance whereof, order of the Magistrate has been modified and the petitioner has been directed to pay monthly interim maintenance of Rs.2000/ in favour of respondent No.1(wife) and Rs. 1500/ in favour of respondent No.2 (daughter). Aggrieved thereof, petitioner has sought quashment of the said order on the ground that the respondent No.1 is not entitled to any maintenance as she stands divorced. 4. Learned counsel for the petitioner contended that the respondent No.1 stands divorced by a written divorce dated 3rd July, 2012 notarized on the same date, which has been sent to the respondent No.1, therefore, marriage between the two did not subsist on the date petition for grant of maintenance has been filed. Supporting this contention, relied on the judgment rendered by the Coordinate Bench of this Court in the case of Masarat Begum v. Abdul Rashid Khan & anr decided on 3rd March, 2014. 5. At this stage, contention of the learned counsel for the petitioner cannot be accepted. The judgement, as relied upon by the learned counsel, has different peculiar facts, so with respects is not applicable to the present case, that too in view of the law laid down by the Hon'ble Apex Court in the case of Shamim Ara v. State of U.P. and another, ( AIR 2002 SC 3551 ). The judgement, as relied upon by the learned counsel, has different peculiar facts, so with respects is not applicable to the present case, that too in view of the law laid down by the Hon'ble Apex Court in the case of Shamim Ara v. State of U.P. and another, ( AIR 2002 SC 3551 ). The revisional Court while granting maintenance to respondent No.1 has followed the law as laid down by the Hon'ble Apex Court in Shamim Ara's case(supra). The factum of divorce in a recognized mode so as to disentitle respondent No.1 from claiming maintenance has to be proved by the petitioner before the trial court. 6. The position of the divorce, as pleaded, has been taken note of by the learned 3rd Additional Sessions Judge while relying on the judgments reported in 2005(I) S.L.J J&K 341, 2003(II) S.L.J. J&K 619 and other judgments, wherein it has been settled that the plea of the applicant to have divorced his wife cannot be accepted unless pronouncement and communication of divorce is proved to have been done in accordance with provisions of law and Quranic injunctions. 7. The power under Section 561-A Cr. P. C has to be exercised sparingly and rarely so to ensure avoidance of miscarriage of justice. In the instant case grant of interim maintenance in favour of respondents is not in any manner going to cause miscarriage of justice nor amounts to abuse of the process of the court so as to persuade the Court to invoke the powers under Section 561-A Cr. P. C. The main proceedings under Section 488 Cr. P. C are pending. The trial court shall expedite the final disposal of the proceedings preferably within three months. Petition is accordingly disposed of. 8. Copy of the order be sent to the trial court for information forthwith.