Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 64 (JK)

Shakeel Ahmad v. State

2018-02-06

M.K.HANJURA

body2018
JUDGMENT : M.K. HANJURA, J. 1. The petitioner has pleaded in the petition that on 03-01-2014, the respondent No.2, after admitting and accepting the conditions of the Talaq, got married to one Shri Zulfikar Hussain of Rajouri in terms of the Shariat law and lived with him as his wife. However, to his surprise and dismay, the petitioner, received a warrant from the Court of Special Magistrate, Rajouri, issued in an application filed by the respondent No. 2 u/s 100 Cr.PC. The petitioner has proceeded to state that he, along with his children, four in number, appeared before the said Court and the learned Magistrate, after hearing the matter, gave sufficient time to the children to decide as to with whom they want to live. The application was finally dismissed by the learned Magistrate with the observation that the children were not in illegal confinement. 2. The petitioner has further stated that the respondent No.2, in order to harass and intimidate the petitioner, filed yet another application u/s 488 Cr.PC seeking maintenance. The petitioner produced sufficient material before the learned Special Mobile Magistrate, Rajouri, to substantiate the fact that after the divorce, the respondent No.2 contracted a second marriage. However, the learned Judicial Magistrate, vide order dated 13-03-2015, directed the payment of interim maintenance in favour of the respondent – wife. 3. Aggrieved by the aforesaid order dated 13-03-2015, of the learned Judicial Magistrate, the petitioner preferred a Revision Petition before the learned Additional Sessions Judge, Rajouri, which came to be dismissed. Learned counsel for the petitioner states that the order, directing the payment of interim maintenance is an abuse of the process of law, inasmuch as, the petitioner has been unnecessarily and unjustifiably directed to pay maintenance to an alien woman, given the fact that she has been divorced and is no more the wife of the petitioner. 4. Heard and considered. Record has also been perused. 5. The petitioner has placed on record an affidavit, (annexure A to the petition), filed by the respondent No.2 before the learned Chief Judicial Magistrate, Rajouri, in which the respondent No.2 has affirmed that she has been divorced by the petitioner on 10-06-2013 and the respondent No.2 has admitted the execution of the said affidavit. Record has also been perused. 5. The petitioner has placed on record an affidavit, (annexure A to the petition), filed by the respondent No.2 before the learned Chief Judicial Magistrate, Rajouri, in which the respondent No.2 has affirmed that she has been divorced by the petitioner on 10-06-2013 and the respondent No.2 has admitted the execution of the said affidavit. Annexure (C) attached to the petition, is an application filed by the respondent No.2 u/s 100 Cr.PC, before the Court of the learned Chief Judicial Magistrate, Rajouri, wherein she has stated, in unequivocal terms, that she has been divorced by the petitioner in the month of June, 2013 and after the divorce, she contracted a second marriage with a person, namely Zulfikar Hussain. Besides these documents, in the Status Report filed by the S.H.O, Police Station, Rajouri, dated 02-06-2017, which is attached to the I.A. No. 02/2017 filed by the petitioner, it is categorically stated that during the enquiry of the case, the respondent No.2 has, on affidavit, admitted that she has been divorced by the petitioner on 10th of June, 2013. The S.H.O has further stated that the respondent No.2 is putting up with Zulfikar Hussain in a rented house in Bela Colony. 6. Taking into consideration the aforementioned facts, there appears to be no reason or justification in directing the petitioner to pay the interim maintenance in favour of the respondent No.2, when, on the face of the annexures – A, C & the Status Report of the S.H.O Police Station, Rajouri, supra, she has admitted that she is the legally wedded wife of Zulfikar Hussain and has ceased to be the wife of the petitioner. Therefore, the impugned orders dated 07-01-2017 & 13-03-2015, passed by the learned Additional Sessions Judge, Rajouri, in the Revision Petition and by the learned District Mobile Magistrate in File No. 18/488, respectively, are quashed, and the learned Judicial Magistrate Ist. Class, Rajouri, is directed to accord fresh consideration to the matter in the light of the aforesaid documents and any other material that may be produced before him by the parties. He shall not get swayed by any of the observations made by this Court in this order. 7. Disposed of along with all connected IAs. 8. Matter to be transmitted to the Court of learned Judicial Magistrate Ist. Class, Rajouri, forthwith.