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2018 DIGILAW 995 (JK)

Shakeel Ahmad Sofi v. Dilshada Akhter

2018-12-18

RASHID ALI DAR

body2018
JUDGMENT : 1. Aggrieved by the order dated 19.08.2014 passed by learned Judicial Magistrate/Munsiff, Shopian, in the petition under Section 488 Cr.P.C. and also order dated 04.06.2016 passed by the Court of Principal Sessions Judge, Shopian, in an appeal filed by the petitioner herein against the order of learned Judicial Magistrate/Munsiff, Shopian, dated 19.08.2014, petitioner has filed the instant petition seeking quashment of the same. 2. From the perusal of the record, it appears that the respondents herein had filed a petition under Section 488 Cr. P. C against the petitioner herein before the Court of learned Judicial Magistrate (Munsiff), Shopian, seeking grant of maintenance, on the following grounds:— “That the respondent No. 1 herein was married to petitioner herein in accordance with the provisions of Muslim Personal Law and the customs prevalent in the families as such the petitioner is the husband of the respondent No. 1 and father of other respondents. The said marriage was solemnized as earlier as twenty-five years back; that after the marriage the spouse was living for a short span of period. However, the petitioner from the very first day was in habit of deserting the respondents and treating here cruelly. It will not be out of place to mention here that out of the said wedlock three issues were born named hereinabove. However, one of the sons passed away at the time of his birth. The respondent Nos. 2 and 3 are minors and are living with the respondent No. 1 till date; that finally the petitioner deserted the respondents and is not paying any maintenance allowances to the respondents despite the fact that the petitioner is earning a handsome amount and has to capacity to earn the good amount. The monthly income of the petitioner is more than Rupees fifty thousand. But despite that he is not contributing a penny towards the respondents; that the respondent No. 1 has turned into a desperate woman due to the desertion by her husband and is living almost a beggar’s life with her two kids (respondent Nos. 2 and 3) and has no source of income to take care of the daily expenses on food and clothing of her children and herself not to think of the better education to the respondent Nos. 2 and 3. 2 and 3) and has no source of income to take care of the daily expenses on food and clothing of her children and herself not to think of the better education to the respondent Nos. 2 and 3. As such in case the petitioner is not directed to pay monthly allowances to the respondent, the respondents will starve to death; that the petitioner is a man of substance and has a good earning capacity and is in every respect of fit person to maintain the respondents and give them a decent life, which is the right of respondents. The petitioner however is turning and running away from his duties and obligations towards the respondents and leaving the respondents in a state of pity and misery and that the respondents are living a very difficult life due to the desertion by the petitioner and respondent No. 1 has no source of income to feed and drape her children and in case this Court will not come to their rescue, the respondents will suffer and will die of starvation and misery.” 3. The petitioner herein filed objections in response to the petition filed by the respondents herein before the Court of learned Judicial Magistrate (Munsiff), Shopian, stating therein:— “That the respondent No. 1 was married to the petitioner and the said marriage was solemnized some twenty years before. However, as the respondent No. 1 has been divorced by way of Talaq-Biddat/Triple Divorce on 04.02.2012 by the petitioner by way of written divorce duly executed and attested and pronounced to the respondent No. 1 is the wife of petitioner is denied as such cannot claim any maintenance; that the petitioner never adopted any kind of cruel attitude nor has deserted the respondent No. 1, till subsistence of marriage, however, it is the respondent No. 1 who by adopting indifferent attitude towards the petitioner, and by adopting cruel attitude towards petitioner has left the petitioner of no alternative, but to divorce the respondent No. 1, however, the fact that during subsistence of the marriage, three issues were born out of which one has died at the time of birth is admitted; that the petitioner has never deserted the respondent during the subsistence of marriage, however, after divorce, aforesaid the petitioner has paid maintenance allowance to the respondent No. 1 till her ‘iddat’ period as per Shariat and law. The petitioner being a Sumo driver is hardly in a position to earn the livelihood to sustain himself along with his family as such the fact that the petitioner being Sumo driver is hardly in a position to earn the livelihood to sustain himself along with is family as such the fact that the petitioner earns more than rupees fifty thousand is denied. Furthermore, the respondent No. 1 being a divorce cannot claim maintenance for herself from the petitioner herein as per law of the lad; that the petitioner is and has always provided maintenance allowances to the respondent Nos. 2 and 3 including the respondent No. 1 upto her ‘iddat’ period after the divorce aforesaid. However, the petitioner being natural and lawful guardian of the minors is entitled to their custody in order to maintain the and fulfil their day to day needs; that the petitioner has always maintained the respondent Nos. 2 and 3 and has also provided maintenance allowance to the respondent No. 1 till her ‘iddat’ period.” 4. The learned trial court after hearing both the parties and after discussing the evidence on record, observed that “while considering the monthly income of the respondent and monthly expenses of the petitioners 2 and 3, it would be just and proper to fix the monthly maintenance of the petitioners at Rs.2,000/ each. Therefore, the respondent is liable to pay Rs.4,000/ per month as maintenance to the petitioners 2 and 3 from the date of passing of the order.” 5. The learned trial court also observed that “so far as the case of petitioner No.1 for grant of maintenance is concerned, the respondent has pleaded that he has divorced the petitioner No.1 by virtue of Talaq Nama executed on 04.02.2012.” It has also been observed that it is settled law that Talaq Nama is to be proved in accordance with the provisions of Evidence Act and the document must itself be produced and its execution proved. In case the original document is lost, destroyed or not available, it may be proved by secondary evidence, the contents of the Talaq Nama cannot be proved orally.” 6. In case the original document is lost, destroyed or not available, it may be proved by secondary evidence, the contents of the Talaq Nama cannot be proved orally.” 6. Finally, learned trial court has observed that:— “In view of above, it is crystal clear that the respondent has failed to prove the Photostat copy of the alleged Talaq Nama by secondary evidence, therefore, it is held that the respondent has not proved the factual of talaq as alleged by him in his objections. As the respondent has failed to prove the Talaq, therefore, the petitioner No.1 is also held entitled to the maintenance from the respondent being the legally wedded wife of the respondent. The petitioner No.1 is held entitled to an amount of Rs.2500/- as monthly maintenance from the respondent from the date of the announcement of this order. In total the respondent is directed to pay an amount of Rs.6500/- to the petitioners as monthly maintenance from the date of this order.” 7. Dissatisfied with the order dated 19.08.2014, the petitioner herein assailed the same before the learned Principal Sessions Judge, Shopian, in an appeal, on the below mentioned grounds:— 1. That the court below has failed to pronounce the final order within the time prescribed thereby causing injustice as a huge amount of maintenance arrears has accumulated which the appellant is unable to pay except committing some illegality like theft, extortion etc. The maintenance has been awarded on higher side ignoring the means/income of appellant and requirements of respondents 2 and 3; 2. That the court below has miss appreciated the fact that the respondent No.2 is a working hand and respondent No.3 being studying in a private school as per the deposition of the respondent No.1 itself and the witnesses examined on her behalf. Furthermore, the respondents being below middle class and below poverty line as such on this count also the income as assessed and expenditure as required by the respondents is against the fact and against the evidence on record as well as such impugned order is liable to be set aside; 3. Furthermore, the respondents being below middle class and below poverty line as such on this count also the income as assessed and expenditure as required by the respondents is against the fact and against the evidence on record as well as such impugned order is liable to be set aside; 3. That the court below has erred in holding that the secondary evidence of written Talak has not been proved as the original Talaknama which has been put to witnesses who have admitted its execution besides its communication and handing over to the respondent No.1 including that of pronouncement of Talak by utterance of words in front of witnesses; 4. That the Talak has also been proved with sufficient evidence through the deposition of independent witnesses adduced on behalf of the appellant while as the evidence adduced by the respondents is self-contradictory. The impugned order is bad in law as the appellant was not heard in the matter of granting maintenance and to that extent impugned order is self-speaking and evident; 5. That the impugned order has been passed without application of mind and without taking into consideration the divorce annexed with the petition. The trial court has failed to appreciate that as per the evidence and deposition of witnesses on record not only the execution of written divorce has been proved beyond doubt but its communication as well has been proved, besides the said Talak has also been orally pronounced upon the respondent No.; 6. That the trial court has failed to appreciate that despite providing the written Talak, its execution and communication thereof, the pronouncement of oral Talak has also been proved beyond doubt as per the evidence on record. 8. The appellate court, in terms of order impugned dated 04.06.2016 dismissed the appeal by observing as under:— “In view of the above discussion, I am of the opinion that the order impugned passed by the trial court does not suffer from any illegality or impropriety which requires any intervention of this court and same is correct in accordance with law. Accordingly, the appeal is dismissed and the order impugned is upheld.” 9. Accordingly, the appeal is dismissed and the order impugned is upheld.” 9. Aggrieved of the order dated 19.08.2014 passed by learned Judicial Magistrate/Munsiff, Shopian, and also order dated 04.06.2016 passed by the Court of Principal Sessions Judge, Shopian, petitioner has filed the instant petition seeking quashing and setting aside of the same on the following grounds:— (a) Both the trial Court as well as the appellate Court below have erred in holding that execution of the divorce has not been proved when the fact is that, no only both of the executing witnesses have been examined but the execution of divorce has also been proved as per the law laid under Section 68 of Indian Evidence Act in such an eventuality the Courts below have not only erred but misappreciated that petitioner ought to have examined scribe, notary public, stamp vendor including the petitioner herein, himself as witnesses to prove said execution. (b) Both the trial Court as well as appellate Court below have in holding that the divorce has not been proved by leading secondary evidence by not examining the witnesses like scribe, notary public, stamp vendor. When the fact is that the petitioner herein has not only successfully pleaded and proved that the original copy of divorce has been handed over to the respondent No. 1, which is in her possession, but has also proved contents of same along with its execution from the photocopy/Xerox of the original divorce as per section 63 and 65 of Indian Evidence Act. Furthermore, in a summary proceeding under Section 488 Cr. PC, the validity or otherwise of the divorce cannot be determined as the same has to be determined only in a regular civil suit, as such, there was no need on part of the petitioner herein to prove the validity of said divorce. (c) The Courts below have erred in holding that there was neither any cause for divorce nor the reconciliatory efforts have been taken by the petitioner herein prior to divorce when the fact is that not only the grounds of divorce have been mentioned in said divorce but the fact of reconciliatory efforts taken by petitioner herein are evident and proved by examination of witness namely Mohd. Rafiq Sofi, which fact has not been appreciated nor any reasons given for its non-appreciation. Rafiq Sofi, which fact has not been appreciated nor any reasons given for its non-appreciation. (d) The petitioner herein has proved the divorce by “balance of probabilities” in accordance with the rules of evidence applicable to Civil cases, as such, the Courts below have erred in holding that non-examination of certain witnesses on part of petitioner herein has created doubt in the minds of Courts below, which is the rule applicable to criminal cases wherein on has to prove certain facts beyond reasonable doubt. (e) Besides the divorce in writing being in customary form which takes effect immediately after its execution irrespective of the fact whether or not it is communicated to the wife and being irrevocable. The petitioner herein has not only proved the communication of same but has also proved its pronouncement besides and in addition to its communication. (f) The Courts below have mis-appreciated and mis-assessed the income of petitioner herein being a driver employed on monthly salary of Rs. 6000/-, who is driving a sumo along with the requirements of respondents in exaggeration along with divorcee respondent No.1. (g) The appellate Court below ought to have remanded the case back to the trial Court for recording of additional evidence as per the finding having held that petitioner herein ought to have brought in the witnesses including scribe, notary public and stamp vendor, etc., or in alternative ought to have examined such witnesses, not examined by trial Court by itself instead of disposing of the appeal by virtue of impugned order herein. 10. Heard learned counsel for the parties and also perused the material available on record. 11. Mr. Tariq, learned counsel for the petitioner submitted that continuance of marital relationship is a pre-requisite for grant of assistance in terms of Section 488 Cr. P.C, which, according to him, manifestly, was missing in the instant case. The judgments referred by the learned trial Magistrate and the learned Sessions Judge, according to him, have no relevance with the subject matter as the principle of law laid down in each case has to be viewed in the backdrop of the facts and circumstances therein. P.C, which, according to him, manifestly, was missing in the instant case. The judgments referred by the learned trial Magistrate and the learned Sessions Judge, according to him, have no relevance with the subject matter as the principle of law laid down in each case has to be viewed in the backdrop of the facts and circumstances therein. The defence taken in the instant case by the petitioner vis-à-vis the discontinuance of relationship with the respondent No.1 was bona fide in nature and not just to cover up the false assertion for defeating the right which the respondent No.1 had pleaded in terms of the application presented before the Magistrate. The reason given by the learned Magistrate that the deed, in terms of which the relationship was contended to have been annulled, could not be produced before said Court as it was categoric plea of the petitioner herein that the original has been forwarded to respondent No.1 and was so it could be the only defence which had to be produced by the petitioner herein to make the Court to believe the said assertion and to prove it accordingly. The Personal law of the parties had to be given proper weight in examining the issue in question along with the provisions of statutory law which include Evidence Act. Section 68 of the Evidence Act lays down as to how the recitals or contents of a document can be proved in case the primary evidence is not available and the petitioner herein has, in tune with the said mandate, proved the execution and the contents of the document. 12. It is also being submitted by learned counsel for the petitioner that stamp once purchased do not become stale even if same are not used within a period of six months. Reliance in this regard is placed on the judgment reported in AIR 2008 SC 1541 . It is also contended that validity of a document can be only determined by a civil court and by its very nature an intricate question cannot be gone into by a Court hearing a petition in terms of Section 488 Cr. P. C, which is summary in nature. It is also his assertion that the trial court was required to weigh the capacity of the petitioner herein to pay maintenance in case the Court was inclined to grant maintenance in favour of other two respondents. P. C, which is summary in nature. It is also his assertion that the trial court was required to weigh the capacity of the petitioner herein to pay maintenance in case the Court was inclined to grant maintenance in favour of other two respondents. There is no finding, according to him, about the income of the petitioner. It is being further contended that there is also error on the part of both the Courts regarding omission attributed to the petitioner by them regarding reconciliatory efforts not having been made before annulling the marriage in question. The evidence on the subject, thus, can be re-looked by this Court as the approach of the both the courts below has resulted in flagrant miscarriage of justice. 13. On the other hand, contention is being raised by learned counsel appearing for the respondents that the learned Magistrate was justified in granting maintenance in favour of the respondents in the light of evidence on record and facts pleaded. The learned Magistrate, according to him, has given sound reasons for not believing the petitioner about the marital relationship having come to an end. 14. Considered the rival arguments. While going through the facts of the case, it is evident that the petitioner and respondent No.1 had married according to the provisions of Shariat Law and so the rights, liabilities and immunities are to be considered in this backdrop. It is not in dispute that the parties belong to Sunni School of Law. Section 2 of the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007, which has relevant to the subject matter, reads as:— “Application of Personal Law to Muslims:— Notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provisions of Personal Law, marriage, dissolution of marriage, including talak, ila, Zihar, lain, khula and mubaraat dower, guardianship, gifts, trusts and trust properties, the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat).” 15. The proceedings, as can be gathered from the judgment passed by learned Magistrate, have been initiated on 08.03.2012 before the said Court by the respondents herein. The proceedings, as can be gathered from the judgment passed by learned Magistrate, have been initiated on 08.03.2012 before the said Court by the respondents herein. The respondent No.1 has pleaded herself to be the wife of the petitioner herein while as other respondents have been pleaded to be as son and daughter born out of wedlock. The monthly income of the petitioner is quoted by the respondents as Rs.50,000/- and so he is being stated to have capacity to maintain all the respondents. The petitioner is stated to have deserted all the respondents and so there was need for passing direction in terms of provisions of Section 488 Cr. P.C. 16. In his reply, as noticed above, petitioner has denied he having deserted any of the respondents. It has been stated by him that the marriage has come to an end on 4th of February, 2012 and a copy of the divorce deed has been annexed with the objections brought on record. The respondent No.1, as has been also noted hereinabove, is stated to have been paid maintenance for “Iddat” period. 17. Petitioner’s witness, namely, Javid Ahmad, has stated that the petitioner herein had divorced the respondent No.1. He has identified his signatures on the copy of “Talaq Nama”. It is also being stated by him that other witness to the divorce deed was Mohammad Rafiq. Second witness, Mohammad Rafiq, has also stated that the copy of “Talaq Nama” which has been shown to him, is same which was prepared at the instance of petitioner herein. Both the witnesses have stated that the document was handed over to respondent No.1. Petitioner has not, however, produced himself in the dock as his own witness and so his examination-in-chief or cross examination has not taken place. 18. In her cross-examination before the trial Magistrate, respondent No1, has stated that she had not been divorced by the petitioner herein 19. Admittedly, it is not the case of the petitioner herein that he has not executed the divorce deed. He has all along pleaded that divorce deed was executed by him and send thereupon to the respondent No.1. The factum of divorce is, however, being denied by the respondent No.1. Admittedly, it is not the case of the petitioner herein that he has not executed the divorce deed. He has all along pleaded that divorce deed was executed by him and send thereupon to the respondent No.1. The factum of divorce is, however, being denied by the respondent No.1. The learned Magistrate has held, as seen above, the marriage to be subsisting between the parties as the original document has not been produced before the Court and also in view of non-production of the secondary evidence coupled with other factors noted in the order. Need for reconciliation as a pre-condition, which is finding reference in the order of learned Magistrate and also of the Session’s Court, though not in conformity with the Division Bench judgment of this court in Ahmad Giri’s case (AIR 1951 J&K Page 1 (DB), may not make much difference, having in view the failure on the part of petitioner herein to examine himself as a witness. The conduct so depicted by the petitioner being not above board, I am not inclined to exercise inherent powers under Section 561-A Cr. P.C. It requires to be underlined herein that the power under said Section is to be exercised sparingly when otherwise there would miscarriage of justice by non-interference. As a matter of fairness, it was for the petitioner herein to clear all the doubts which surfaced later on appreciation of evidence during his turn to lead the evidence, finding reference in the order of Magistrate and thereafter in the order of ld. Sessions Judge. The divorce if executed (as mentioned in the objections or in the statements of witnesses examined on behalf of the petitioner) and intended to be acted upon had to be vouched so by none else than the petitioner. 20. I don’t think the power under Section 561-A Cr. P.C is available for correction of any illegality to the perception of a party or High Court as the High Court cannot act as a Court of appeal in exercising powers under the said section. Proper herein would be refer to the observations of his Lordships T.S. Thakur, “J”, while explaining the inherent powers under Section 482 Cr. PC:— “……the plenitude of the power under S. 482, CrPC by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. Proper herein would be refer to the observations of his Lordships T.S. Thakur, “J”, while explaining the inherent powers under Section 482 Cr. PC:— “……the plenitude of the power under S. 482, CrPC by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing………………. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under S. 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in case where refusal to exercise that power may result in the abuse of process of law.” 21. No ground is made out for quashing the order dated 19.08.2014 passed by ld. Judicial Magistrate (Munsiff), Shopian and order dated 04.06.2016 passed ld. Principal Sessions Judge, Shopian. The petition being without merit is dismissed. Petitioner would be, however, free to approach the Civil Court in case he is interested so to prove that the marriage had been annulled in terms of divorce pleaded in the objections. 22. Copy of this order be sent to the trial court for information.