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2017 DIGILAW 879 (JK)

Shagufta Kouser v. State

2017-09-22

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashing of order dated 01.05.2017 passed by learned Principal Sessions Judge, Rajouri in File No. 63/Revision setting aside order dated 29.03.2016 passed by JMIC Kotranka. Petitioner also seeks quashing of order dated 25.05.2017 passed by JMIC Kotranka dismissing the petition filed by the petitioner for grant of maintenance. 2. Learned counsel for the petitioner submitted that the petitioner is the legally wedded wife of respondent No. 4, namely, Mohammad Mukhter and their marriage was solemnized almost three and half years ago according to the Muslim Personal Law at Village Swari, Tehsil Kotranka, District Rajouri. That out of their marriage, no issue was born and during the initial days of marriage, the relationship between the petitioner and respondent No. 4 was cordial, but after the passing of one and half years, suddenly the behaviour of the respondent No. 4 changed towards the petitioner and he started harassing/torturing the petitioner. All these activities in the matrimonial house were done only with the purpose to torture the petitioner and was asked to pay the extra dowry to the tune of Rs. 3.00 lacs, which the petitioner denied on the pretext that her father has already paid the sufficient dowry under their influence in the marriage and he is not further in a position to do so. That the respondent No. 4 is an employee of Indian Army and is getting Rs. 80,000/- (Rupees Eighty Thousand) as his monthly salary and in addition to this, various other allowances are paid to him and is, therefore, a person of means and sources. Since the environment of the matrimonial house was disturbed by the respondent No. 4 by his daily unusual activities and was mentally and physically torturing the petitioner and she was thrown out of the matrimonial house and has become destitute completely dependent on the parents for maintaining her life, during such a time when inflation is touching the sky. 3. Learned counsel further submitted that when the petitioner was thrown out of the matrimonial home, the petitioner filed an application for maintenance before the Court of learned Munsiff JMIC, Kotranka on 31st October, 2015. 3. Learned counsel further submitted that when the petitioner was thrown out of the matrimonial home, the petitioner filed an application for maintenance before the Court of learned Munsiff JMIC, Kotranka on 31st October, 2015. That after hearing both the parties & keeping in view the earning capacity of the respondent No. 4, the learned Munsiff JMIC, Kotranka by virtue of order dated 29th March, 2016, directed respondent No. 4 to pay the interim maintenance to the tune of Rs. 6000/- (Rupees Six Thousand) per month to the petitioner. 4. Aggrieved by the order passed by the learned Munsiff JMIC, Kotranka, the respondent No. 4 filed Revision Petition against the aforesaid order dated 29.03.2016 and the Principal Sessions Judge, Rajouri has vide order dated 1st May, 2017 set aside the order dated 29th March, 2016 with the following observation:- "In view of the above, the impugned order stands set aside and the learned Magistrate is directed to pass fresh orders in accordance with law regarding the claim of interim maintenance after affording an opportunity to the parties to produce the evidence of summary nature for passing the provisional remedy." 5. That in pursuance of the directions passed by the Principal Sessions Judge, Rajouri, the Court of learned Munsiff JMIC, Kotranka vide order dated 25th May, 2017 dismissed the maintenance petition without application of mind. The order dated 1st May, 2017 passed by the Principal Sessions Judge, Rajouri and the order dated 25th May, 2017 passed by the Munsiff JMIC, Kotranka are impugned and challenged inter alia on the following grounds:- (a) Both the orders dated 1st May, 2017 passed by the learned Principal Sessions Judge, Rajouri and 25th May, 2017 passed by the learned Munsiff JMIC, Kotranka are bad in the eye of law and, therefore, cannot sustain the test of law, as such is liable to be set aside. (b) The careful perusal of the order dated 1st May, 2017 shows that the only ground, which has been taken by the respondent No. 4 and appreciated by the Principal Sessions Judge, Rajouri is that since the respondent No. 4 has divorced the petitioner by the Divorce Deed executed by him on 09th October, 2015 and the same has been communicated to the petitioner through registered post. Further, the Revision Court has a opined that it is an acknowledged principle for grant of provisional relief that the right of which, enforcement is sought in the main proceedings should not be under serious doubt. In order to sustain the grant of interim maintenance, some prima facie material is to be considered and looked into by the trial Magistrate. (c) Yet the stage of evidence has not come before the Trial Court and without giving an opportunity to produce the evidence, the Court below has treated the averments of the respondent No. 4 as gospel truth and has come with this finding. It is pertinent to mention here that no such "Talak", as projected by the respondent No. 4 before the Courts below has ever been received by the petitioner, however, the respondent No. 4 just to avoid the maintenance and come out of this situation, has come with some documents before the Court below, which the petitioner is absolutely not aware of on this ground alone the order is liable to be set aside. (d) Under Muslim Law, divorce is allowed for a reasonable cause and could not be exercised at caprice and whim of the husband. It must be preceded by an attempt to reconciliation between the husband and the wife by two arbiters, one chosen by wife from her family and other by husband from his family, who shall endeavour to pass reconciliation between them, and if such reconciliation fails, only then there can be a valid divorce, which is completely missing in the present case, as no efforts of reconciliation have ever been made by the side of the respondent No. 4. (e) The respondent No. 4 has come with certain documents before the Revision Court just to come out of the situation to avoid maintenance to the petitioner, who has become destitute because of her being thrown out of the matrimonial house by the respondent No. 4. (f) Instead of adhering to the law dealing with the divorce of Muslim women, as propounded by this Hon'ble High Court, the Court of Principal Sessions Judge, Rajouri has adopted a despotic attitude towards the petitioner and has denied the right, which she is entitled for. (f) Instead of adhering to the law dealing with the divorce of Muslim women, as propounded by this Hon'ble High Court, the Court of Principal Sessions Judge, Rajouri has adopted a despotic attitude towards the petitioner and has denied the right, which she is entitled for. (g) The Court of Munsiff JMIC, Kotranka was directed by the Court below vide order dated 1st May, 2017 to give further opportunity to both the parties and to produce the evidence of summary nature, but the learned Magistrate has with one stroke of pen, without giving any sufficient reason and also without application of mind dismissed the maintenance petition in the order, which is bad in the eye of law and hence, liable to be quashed. 6. Heard learned counsel for the petitioner and considered the law on the subject. 7. Bare perusal of order dated 01.05.2017 passed by Sessions Judge, Rajouri; it is evident that Court has remanded the case back to the Court below i.e. JMIC Kotranka for passing fresh order after allowing the parties to produce evidence of summary nature with regard to divorce plea taken by husband. 8. Perusal of order dated 25.5.2017 passed by JMIC Kotranka would reveal that only execution petition of petitioner has been dismissed. The main petition or interim petition cannot be dismissed. In case, main petition or interim petition for maintenance deemed to have been dismissed, then there is error of law committed by Court below. Therefore, this petition is disposed of with direction to Court of JMIC Kotranka to restore both the petitions and proceed in accordance with law. A copy of order is sent to Court below.