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2017 DIGILAW 1040 (JK)

Mohammad Yaseen Bhat v. Aisha Yaseen

2017-11-30

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. The facts chiseled out of the instant petition filed under Section 561-A Cr. P.C. for quashing the impugned orders dated 30th of September, 2015, passed by the Court of learned Sub-Judge/Special Mobile Magistrate under 13th Finance Commission, Srinagar, and, the order dated 24th of February, 2016 of the Court of learned Additional Sessions Judge, Srinagar, passed in the revision petition, are that the Respondent No.2 (in this petition), namely, Mst. Nadiya Yaseen, moved an application for the grant of maintenance in her favour and in favour of her minor daughter, i.e. Aisha Yaseen, before the Court of learned Sub-Judge/Special Mobile Magistrate under 13th Finance Commission, Srinagar, and, by order dated 30th of September, 2015, the Court directed as follows: “Now it is found prime-facie, that the application of interim maintenance which is duly supported by affidavit discloses that the petitioner no.2 is a wife of respondent and petitioner No.1 has been born out of wedlock from the respondent and petitioner. The conduct of respondent by publishing divorce deed in a paper clearly shows the intention of respondent prime-facie that he is not ready to take back the petitioner no.2. The respondent is a govt. employee and his monthly income is 19239/- after deduction and he is also paying 3000/- installment to housing loan. Herein it is pertinent to mention that the petitioner no.2 is well qualified lady with MBA degree and she was earlier working in the Metlife as per her petition she was forced to resign from the said job after marriage and the resignation letter is also part of file. This Court is of opinion that the maintenance should not become an impediment in subjecting a person capable of work from working. Herein no doubt the petitioner no.2 is being forced to resign from the job, but still she is capable of working. However the petitioner no.2 till finding her new job cannot be left in lurch and cannot be left dependent on others for her basic necessities. Considering all these things interim maintenance to the tune of Rs. 3000/- in favour of petitioner no.2 and 30000 in favour of petitioner no.2 is announced from the date of filing of application. However the petitioner no.2 till finding her new job cannot be left in lurch and cannot be left dependent on others for her basic necessities. Considering all these things interim maintenance to the tune of Rs. 3000/- in favour of petitioner no.2 and 30000 in favour of petitioner no.2 is announced from the date of filing of application. Interim application is accordingly disposed of and is consigned to records after due completion.” The petitioner (the husband of the Respondent No.1 here in this petition), assailed the order cited above in a Revision before the Court of learned Additional Sessions Judge, Srinagar, and, the learned Additional Sessions Judge, Srinagar, by his order dated 24th of February, 2016, dismissed the same. Aggrieved by these orders, the petitioner, filed this petition, primarily, on the ground that he divorced his wife, namely, Mst. Nadiya, i.e. the Respondent No.2 herein in this petition, before the date of filing the application under Section 488 Cr. P. C. and, therefore, the relationship of a husband and wife in between them ceased to exist from the said day and, as a sequel thereof, she is not entitled to claim any maintenance from him. He has proceeded to state that the Respondent No.2 acknowledged the receipt of the Deed of divorce. 2. Heard and considered. 3. To bring home his argument that the learned trial Court has erred in passing the order of interim maintenance, the learned counsel for the petitioner has relied on the law laid down by this Court in the case of “Masarat Begum vs. Ab. Rashid Khan and Anr.” reported in 2014 (3) JKJ 1 (HC), the relevant excerpts of which are detailed below: “28. Coming to the instant case, respondent no.1 has taken the plea that he has divorced the petitioner by a written deed, talaqnama, executed by him on 30.07.2009 in presence of witnesses. The original of the talaqnama has been placed on record. It bears the signatures of the respondent as well as the scribe of the deed and two witnesses. It has been attested by Notary Public and bears the seal and signatures of the Notary Public. Though executed prior to the date of filing of the application for maintenance by the petitioner, it cannot be said that the plea taken is simply to wriggle out of the liability to maintain the petitioner. It has been attested by Notary Public and bears the seal and signatures of the Notary Public. Though executed prior to the date of filing of the application for maintenance by the petitioner, it cannot be said that the plea taken is simply to wriggle out of the liability to maintain the petitioner. Of course, this talaqnama is required to be proved for final determination of the question whether or not the petitioner is entitled to the grant of maintenance in her favour. But for grant of interim maintenance there must be some material to come to a prima facie finding that the marriage between the parties subsists. Therefore, the argument of the learned counsel that till the divorce is proved the relationship between the petitioner and respondent no.1 as husband and wife would be deemed to be subsisting and, consequently, the petitioner would be entitled to interim maintenance till such time the divorce is proved is an argument not buttressed by the Personal Law governing the parties. 29........... 30. Having minutely gone through the impugned judgment, I find the same well reasoned and in accordance with law. As discussed hereinabove, and to sum up the law on the point, the statutory provisions of Sections 488 to 490 Cr. P. C do not contemplate the grant of interim maintenance, and the same has been developed by law of precedence. The concept so developed is strictly restricted by two complementary rigours; first, the rigour of the principles governing the grant of interim relief, and second the personal law, subject to which alone the interim maintenance can be granted. Viewed thus, in order to justify the grant of interim maintenance, the applicant has to establish a prima facie case, that she is entitled to maintenance under Section 488 Cr.P.C. In order to arrive at such a conclusion the Magistrate is required to have some semblance of material on record in the shape of evidence. The learned Session Judge by the impugned order, as noticed above, has rightly directed the learned Magistrate to consider the matter afresh on the basis of evidence of summary nature to be produced by the parties and pass fresh orders in accordance with law. Therefore, the judgment of the Revisional Court, stating the correct position of law, does not warrant any interference under the inherent powers of this Court.” 4. Therefore, the judgment of the Revisional Court, stating the correct position of law, does not warrant any interference under the inherent powers of this Court.” 4. It needs must be said that interim maintenance, at the rate of Rs. 3,000/- from the date of moving the application has been awarded in favour of each respondent by order dated 30th of September, 2015 of the Court of Sub-Judge/Special Mobile Magistrate under 13th Finance Commission, Srinagar. The judgment of law cited above lays down that sections 488 to 490 Cr. P.C., 1973 do not envisage a situation where interim maintenance can be directed to be paid. It proceeds to state that this thought has developed by the law of precedence and the concept so developed has to be tested on the extreme severity, firstly, of the elementary principles governing the grant of interim relief, and, secondly, the personal law, subject to which alone, the interim maintenance can be granted. The condition precedent for the grant of interim maintenance is that the applicant has to establish a prima facie case so as to attach a semblance of fairness to such an order. The dictum of law enunciated in the judgment (supra) does not have its application to the facts of the instant case for the reason that it was designed to deal with a case where the deed of divorce was not instant and irrevocable, while as, in the case on hand the talaq is an irrecoverable one, called triple talaq, the validity or otherwise of which will be looked into after testing the merits and the scope of the orders directing the payment of maintenance. 5. The order passed by the learned Special Mobile Magistrate, Srinagar, affirmed by the learned Additional Sessions Judge, Srinagar, is a reasoned one. It does not call for any interference. The learned Court has taken note of the fact that the petitioner, here in this petition, is a Government employee receiving a monthly salary of Rs. 19,239/- after deductions and he is also paying an installment of Rs. 3,000/- to liquidate the Housing loan. The learned Trial Court has also elucidated the fact that the wife of the petitioner, in this petition, is a qualified lady with a degree of MBA to her credit. 19,239/- after deductions and he is also paying an installment of Rs. 3,000/- to liquidate the Housing loan. The learned Trial Court has also elucidated the fact that the wife of the petitioner, in this petition, is a qualified lady with a degree of MBA to her credit. He has also stated that she was earlier working in MetLife, but was forced to leave the job after her marriage, and, to buttress so, the letter of resignation has also been placed on record by her. After according due consideration to the facts and circumstances of the case, the Court awarded an interim maintenance of Rs. 3,000/- in favour of Aisha Yaseen (minor daughter of the petitioner here in this case), i.e. Respondent No.1 herein and Rs. 3,000/-in favour of Mst. Nadiya, i.e. the Respondent No.2 herein. 6. A daughter has a statutory right to be maintained by the father irrespective of the fact whether, or not, the mother has a right to be maintained. The father has to discharge his legal duty and moral obligation of maintaining the child. True it is that the wife also cannot be left in a lurch till such time that the application is finally heard and determined. Grant of interim maintenance is a relief against destitution. The Supreme Court in the case of “Savitri vs. Govind Singh”, reported in AIR 1986 SC 984 , while evolving this concept, ordained that even an application supported by an affidavit will be sufficient to seek such a relief. The aim and object of the grant of interim maintenance is to prevent vagrancy and to provide the wife and child a breathing spur to live. The petitioner being an able bodied person receiving a handsome salary cannot evade his responsibility to maintain his child and the wife. However, to ward off his liability, the petitioner, in this case, has taken refuge under the plea that his wife is not entitled to any maintenance because he has already divorced her and she has acknowledged its receipt. The Deed of divorce, which forms a part of the petition of the petitioner, is a sequel to the fact that the petitioner has pronounced a 'Tripple Talaaq' on his wife, i.e. the Respondent No.2 in the petition. The Deed of divorce, which forms a part of the petition of the petitioner, is a sequel to the fact that the petitioner has pronounced a 'Tripple Talaaq' on his wife, i.e. the Respondent No.2 in the petition. This practice has been declared to be void by a majority view of the Hon'ble Judges of the Apex Court of the country in the case of “Shayara Bano and Ors vs. Union of India and Ors.” reported in “2017 (4) JKLT 1 (SC)”, wherein it has been held as under: “Per Hon'ble Mr Justice Kurian Joseph (Majority view): 24. To freely profess, practice and propagate religion of one's choice is a Fundamental Right guaranteed under the Indian Constitution. That is subject only to the following- (1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights. Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted. 25. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation. 26. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” “Per Hon'ble Mr Justice R.F. Nariman and Hon'ble Mr. Justice Uday Umesh Lalit (Majority view): 56. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee's book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara vs. State of U.P., (2002) 7 SCC 518 , this Court after referring to a number of authorities including certain recent High Court judgments held as under: “13...The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters - one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun case [(1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as ordained by the 392 Holy Quran, is: (i) that “talaq” must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, “talaq” may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law. 14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts.” 57. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him. 7. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him. 7. Applying the ratio of the law laid down above to the facts of the instant case, an arbitrary, instant or irrevocable talaq as ordained by the Holy Quran is not a valid one. It must be for a reasonable cause anteceded by attempts to seek reconciliation between the husband and the wife by a set of two mediators-one each from both the families. If in such reconciliation the attempt to harmonize the relationship between the two spouses fails, talaq may be operated. Any attempt to save the marital tie in the case of triple talaq, which operates immediately, is out of question and cannot ever take place. Not only this, it is not necessary that the cause for the pronouncement of such a talaq should be a reasonable one. This form of talaq being arbitrary, in the sense that the marital tie can be broken in an erratic, impulsive, freakish and a mercurial manner, has been held to be violative of Article 14 of the Constitution of India, and, as such, void in its effect. Therefore, the triple talaq herein this petition is inconsequential and shall not produce any change in the relationship of the petitioner and the respondent No.2. Their relationship of a husband and the wife does and will exist and subsist. The form of talaq to which recourse has been had by the petitioner will not repudiate the marriage between the petitioner and the respondent No.2. 8. Viewed in the context of all that has been said and done above, the petition of the petitioner is devoid of any merit. It entails dismissal and is accordingly dismissed. The record of the trial Court shall be sent back forthwith. The Trial court shall make all endeavor to see that the proceedings in the case are brought to a logical conclusion with utmost dispatch.