Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 23 (JK)

Hilal Ahmad Lone v. Gulshana Begum

2021-02-11

SANJEEV KUMAR

body2021
JUDGMENT : 1. This is a petition filed by the petitioner under Section 482 Cr. P. C. for quashing of order dated 6th of March, 2020, passed by the Court of Chief Judicial Magistrate, Sopore (the trial court) in case titled 'Gulshana Begum Vs. Hilal Ahmad Lone' and order dated 15th of December, 2020 passed by the Court of Additional Sessions Judge, Sopore (the Revisional Court) in the case titled 'Hilal Ahmad Lone Vs. Gulshana Begum'. 2. The relevant facts, as projected by the petitioner in this petition, in so far as these are necessary for determination of the controversy raised, may be, briefly, noticed. 3. The petitioner and respondent are husband and wife having contracted their marriage in the year 2017. It is the case of the petitioner that right from inception, the conduct of respondent towards petitioner has remained unsatisfactory and unbecoming of a wife. Petitioners claims to have made numerous efforts to bring the strained relations between the parties on track but in vain. The petitioner, constrained by the circumstances created by the respondent, claims to have divorced respondent by executing a written divorce deed on 29th of May, 2019, which was steadily sent to the respondent through registered post. Petitioner relies upon the certificate of postal authorities to assert that the respondent has duly received the divorce deed. 4. It is the further case of the petitioner that the respondent feeling annoyed on receiving the divorce deed and by way of counterblast, filed an application under Section 488 Cr. P. C (now Section 125 of Central Cr. P. C) before the trial court seeking a monthly maintenance of Rs.20,000/- primarily on the ground that respondent is the legally wedded wife of the petitioner and has been, without any lawful excuse or justification, deserted by the petitioner. 5. The application for maintenance filed before the trial court is contested by the petitioner, primarily, on the ground that the respondent has ceased to be his wife having been divorced as per Shariat Law and, therefore, is not entitled to any maintenance. It is also the plea taken by the petitioner that the respondent is self sufficient and is earning Rs.11000/- per month while working as a teacher in a well reputed private school. 6. It is also the plea taken by the petitioner that the respondent is self sufficient and is earning Rs.11000/- per month while working as a teacher in a well reputed private school. 6. The trial court after considering the application and the stand of the respondent, vide order dated 6th of March, 2020, granted interim maintenance of Rs.8000/- per month to the respondent to be paid by the petitioner from the date of application till the dismissal of main lis. 7. Feeling dissatisfied and aggrieved with the order dated 6th of March, 2020 passed by the trial court, the petitioner preferred a revision petition before the Revisional Court. The Revisional Court also did not agree with the petitioner and vide its order dated 15th of December, 2020, upheld the order of the trial court granting maintenance of Rs.8000/- per month to respondent. It is this order of the Revisional Court as also the order of the trial court which is assailed by the petitioner in this petition. 8. Learned counsel for the petitioner has challenged the impugned orders, inter alia, on the following grounds : (i) That the learned Revisional Court has not appreciated the fact that in view of the divorce between the parties, the respondent was not entitled to any maintenance under Section 488 Cr.P.C. (ii) That the Revisional Court has also not appreciated the fact that the grant of Rs.8000/- per month as maintenance in favour of the respondent was excessive and exorbitant keeping in view the fact that the petitioner is virtually unemployed and is surviving on the meager salary which he receives by working as a help in the shop owned and run by his father. 9. Having heard learned counsel for the petitioner and perused the record, I find no substance in the plea raised by the petitioner before the trial court as well as Revisional Court and also before this Court. The facts in the instant case are not disputed. The petitioner and respondent are legally wedded husband and wife. It is, however, claim of the petitioner that he has divorced the respondent by executing a divorce deed and communicating the same to the respondent. The divorce claims to have been pronounced/communicated by the petitioner is, however, disputed by the respondent. 10. Admittedly, the relations between the parties are strained and the two are living separately. It is, however, claim of the petitioner that he has divorced the respondent by executing a divorce deed and communicating the same to the respondent. The divorce claims to have been pronounced/communicated by the petitioner is, however, disputed by the respondent. 10. Admittedly, the relations between the parties are strained and the two are living separately. The claim of the petitioner that the respondent is self sufficient and is earning her livelihood by working as a teacher in a private school is not substantiated by any documentary evidence on record. On the other hand, the petitioner is, running a shop though he claims to be a servant in the shop of his father. 11. Be that as it may, the aforesaid assertion is required to be proved by the petitioner during the course of trial of the main maintenance petition. At the stage of grant of interim maintenance, the Court is only supposed to look to the admitted factual position and not embark upon determination of disputed questions of fact. The trial court has correctly ignored the plea of divorce taken by the petitioner and granted maintenance of Rs.8000/- per month to the wife. The Revisional Court had no reason or justification to take a view contrary to the one taken by the trial court and rightly dismissed the revision petition of the petitioner. 12. From a bare reading of Section 488 Cr.P.C., which is in pari materia with Section 125 of the Central Code of Criminal Procedure, it clearly transpires that the provision is intended to provide a quick remedy to provide succour to destitute wife. Proceedings before the Magistrate are summary in nature and the complicated disputed questions like the factum of marriage or divorce cannot be made subject matter of adjudication in these proceedings. 13. The nature and scope of the proceedings under Section 125 of the Central Code of Criminal Procedure, 1973, was considered at some length by the Supreme Court in the case of Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 . In a recent judgment in the case of Rajnesh v. Neha and another, Cr. Appeal No.730 of 2020 passed on 04.11.2020, the Supreme Court considered extensively the provisions of Section 125 of the Central Code of Criminal Procedure and the parallel provisions in the Hindu Marriage Act and the D.V. Act. In a recent judgment in the case of Rajnesh v. Neha and another, Cr. Appeal No.730 of 2020 passed on 04.11.2020, the Supreme Court considered extensively the provisions of Section 125 of the Central Code of Criminal Procedure and the parallel provisions in the Hindu Marriage Act and the D.V. Act. Hon'ble the Supreme Court in one of the paragraph of the judgment has held thus:- “The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court/family court in an appropriate proceeding, such as the Hindu Marriage Act, 1956.” 14. The Supreme Court even went to the extent of holding that the presumption of marriage arises even when the parties are in a live-in relationship for a long period of time and strict proof of marriage should not be a pre-condition for grant of maintenance under Section 125 Cr.P.C. The law presumes in favour of subsistence marriage and, therefore, strong proof is required to rebut such presumption by a person, who alleges divorce. To the similar effect is the view taken by a Bench of this Court in the case of Mushtaq Ahmad Badyari v. Ruquya Akhter, CRMC No.41/2018 decided on 12.11.2020. A Coordinate Bench of this Court in the aforesaid case has held thus:- “Thus, merely taking a plea of divorce in the objections by the petitioner before the court below by narrating that he has sent the divorce deed to his wife through registered post and the same stands received by the wife would not disentitle the wife to get interim maintenance.” 15. The issue raised by the petitioner in this petition was, precisely, the issue in CRM(M) No.36/2020 titled Nissar Ahmad Matoo Vs. Ulfat decided by this Court on 05.02.2021, 2021 (1) JKJ 12 [HC]. What was held by this Court in the similar set of facts and circumstances is concluded in para 15 and 16, which read thus : “15. Viewed thus, it is axiomatic that merely putting forth the plea of divorce by the husband would not be sufficient to deny interim maintenance to the wife under Section 125 Cr. P. C. As observed above and reiterated herein that there is presumption of subsistence of marriage and the onus is on the person, who alleges divorce, to prove cessation of the marital ties. P. C. As observed above and reiterated herein that there is presumption of subsistence of marriage and the onus is on the person, who alleges divorce, to prove cessation of the marital ties. Otherwise also, proceedings under Section 125 Cr.P.C. are summary in nature and complicated disputed questions are not required to be gone into. At the stage of grant of interim maintenance, the Magistrate shall simply ignore the plea of divorce, however, while considering the application under Section 125 Cr. P. C. finally, it may take note of prima facie evidence on record with regard to subsistence or otherwise of the marriage between the parties. For final determination the Magistrate shall leave the parties to seek adjudication before the Civil Court, which is well equipped to determine such complicated disputed questions of title or status. 16. In view of the aforesaid, the answer to question No.(i) is simple and categoric that the husband by merely taking the plea of divorce in a petition under Section 125 Cr. P. C. cannot be absolved of its responsibility to maintain his wife and minor children.” 16. The aforesaid judgment applies on all fours to the case in hand and, therefore, the first ground of challenge of the petitioner is found to be without any substance and is, accordingly, rejected. 17. So far as second ground of challenge raised by the petitioner is concerned, the same is also bereft of any substance and, therefore, cannot be accepted. The petitioner is a shopkeeper as is evident from the stand of the petitioner. His plea that he is not owner of the shop but is working as a help to his father is not substantiated by any unflinching evidence. Otherwise also, such plea taken by the petitioner is required to be proved by him by leading evidence during the course of trial of the main petition before the trial court. At the interim stage, it is not possible for the Court to concede to the oral defence of the petitioner. Both the courts below i.e. trial court and the Revisional Court, being courts of fact, have concurrently held that the respondent being a deserted wife is entitled to sustenance in the shape of interim maintenance which the courts have fixed as Rs.8000/- per month. I do not find the amount of interim maintenance fixed by the courts below either excessive or exorbitant. I do not find the amount of interim maintenance fixed by the courts below either excessive or exorbitant. This is the minimum amount that is required for a soul to survive in these days. 18. For the foregoing reasons, the petition is found to be without any merit and is, accordingly, dismissed along with connected application.