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2015 DIGILAW 574 (JK)

Khursheed Ahmad Bhat v. Shabnum Ara

2015-11-04

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Grant of interim maintenance amounting to Rs. 800/- (eight hundred) per month from the date of application in favour of the respondent by the Court of Judicial Magistrate 1st Class, Dooru vide order dated 05.04.2014 is sought to be quashed. The parties were married to each other in the year 2007. Unfortunate as it is, the alleged strained relationship right from the beginning has resulted in the divorce which the petitioner after pronouncing the same has reduced into writing on 22.08.2013 and sent under registered cover to the respondent which the respondent has refused to receive. Immediately thereafter on 06.09.2013 respondent launched the proceedings for grant of maintenance under Section 488 Cr. P.C. Application for interim maintenance has been allowed vide order impugned. 2. According to learned counsel for the petitioner, petitioner is not liable to pay any maintenance as the respondent is a divorcee. 3. Learned Magistrate in his order granting interim maintenance has noticed that the petitioner after divorcing the respondent has solemnized another marriage. Father of the petitioner is an epilepsy patient to whom he has to pay Rs. 1000/- per month whereas the total income of the petitioner is Rs. 3000/- per month. Furthermore, has observed that the allegations and counter allegations need thorough probe. For advancing the sociological object of Section 488, petitioner has to pay Rs. 800/- per month as interim maintenance from the date of filing of application. Learned Magistrate has referred to the judgments reported in AIR 2002 SC 3551 , 1987 SLJ 289 : JKJ Soft JKJ/20097 [Titroo v. Morni] and 1987 SLJ 365 : JKJ Soft JEJ/20113 [Ab. Salam Sofi v. Dilshada]. 4. The factual position of the case in hand is altogether different. In case petitioner would have pronounced Talaq and then would have reduced divorce into writing after institution of the application for grant of interim maintenance, an inescapable conclusion could be that with the object of avoiding payment of maintenance he has divorced the respondent. Same position is not discernible because according to petitioner divorce was pronounced and then reduced into writing on 22.08.2013 whereas petition for grant of maintenance has been filed on 06.09.2013, much after the date of pronouncement of Talaq. In addition thereto, detailed objections have been filed against the application seeking maintenance. Same position is not discernible because according to petitioner divorce was pronounced and then reduced into writing on 22.08.2013 whereas petition for grant of maintenance has been filed on 06.09.2013, much after the date of pronouncement of Talaq. In addition thereto, detailed objections have been filed against the application seeking maintenance. Perusal of the same amply demonstrates and suggest as to what has been the relationship between petitioner and the respondent for the period marriage subsisted. It is also mentioned therein the objections that the petitioner had also appeared before the Shariat Board under the name Darul Ifta-wal-Qazi Shariat-e-Islami, Bijbehara presided over by Mufti Zia-ul-Haq Nazmi. Two persons as named in the objections were sent to the respondent regarding intimation of Talaq. It is also mentioned that the petitioner had many a times requested the parents and family members of the respondent that the respondent is not behaving properly which in other words would mean that the petitioner claims that the act of reconciliation also could not help their re-union. The relation had strained and had reached to the point of no return. 5. While considering the whole record what would emerge is that the learned Magistrate has not properly considered the objections of the petitioner as filed against the grant of maintenance. It is true that Section 488 Cr.P.C. has a sociological object but the respondent has to justify liability of the petitioner to maintain her. The question whether the divorcee is liable to be maintained has remained to be addressed. 6. In the aforesaid background, order impugned dated 05.04.2014 passed by the Court of Judicial Magistrate 1st Class, Doom, is set aside, learned Magistrate after hearing both the parties and while keeping in view the observations made hereinabove shall consider the matter afresh and then to pass appropriate orders as shall be warranted. Copy of the order be sent to the learned Magistrate for information.