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2022 DIGILAW 166 (JK)

Mehbooba v. Peer Mohammad Rafiq

2022-04-19

SANJAY DHAR

body2022
JUDGEMENT/ORDER : 1. The petitioners have challenged order dated 11.10.2018, passed by learned 3rd Additional Sessions Judge, Srinagar in a revision petition filed against order dated 05.05.2018, passed by learned Judicial Magistrate 1st Class (Judge Small Causes), Srinagar. 2. It appears that the respondent had entered into wedlock with petitioner No. 1. Out of this wedlock petitioner No. 2 was born. Due to matrimonial dispute between the petitioner No. 1 and the respondent, the petitioners started residing separately from the respondent and filed a petition under section 488 J&K Cr.P.C. before the Judicial Magistrate 1st Class (Judge Small Causes) Srinagar. The learned Magistrate after hearing the parties awarded interim maintenance of Rs. 5000/- per month to the petitioner No. 1, the wife and Rs. 7000/- per month to petitioner No. 2, the daughter. The aforesaid order came to be challenged by the respondent before the Court of 3rd Additional Sessions Judge, Srinagar. The learned Sessions Judge set aside the order of learned Magistrate by observing that the petitioner No. 1 has ceased to be the legally wedded wife of respondent, as she has been divorced and regarding the petitioner No. 2, the learned Sessions Judge has observed that the interim maintenance awarded in her favour is on higher side and the matter in this regard was remanded to the learned trial Magistrate. 3. The petitioners have challenged the orders passed by the learned Sessions Judge on the ground that the question whether the petitioner No. 1 was divorced by the respondent is a triable issue and it was not open to the learned Sessions Judge to shut out the case of petitioner No. 1 without any trial, by observing that she has ceased to be the wife of the respondent. It is further contended that the petitioner No. 2 is studying in Kashmir Law College and keeping in view the expenses on her studies, the amount of maintenance granted by the learned Magistrate in her favour is not excessive. 4. It is further contended that the petitioner No. 2 is studying in Kashmir Law College and keeping in view the expenses on her studies, the amount of maintenance granted by the learned Magistrate in her favour is not excessive. 4. Learned counsel for the respondents on the other hand has defended the order of learned Sessions Judge and has contended that a divorcee Muslim wife is not entitled to maintenance and that it was clearly pleaded by the respondent before the learned trial Magistrate that he had divorced petitioner No. 1 twenty five years ago and copy of deed of divorce in this regard was also placed on record before the trial Magistrate. 5. I have heard learned counsel for the parties and perused the record. 6. For testing the merits of the impugned order passed by the learned Sessions Judge it would be apt to reproduce the relevant extracts of the said order:- "The petitioner submitted vehemently that respondent No. 1 is not the legally wedded wife of the petitioner as she has been divorced 25 years ago. The copy of the divorce deed formulated in year 1995 was also filed with objection before the trial court and copy of the same has been annexed with the objection before the trial court and the said divorce has been personally conveyed to respondent No. 1 by the petitioner but respondent No. 1 has pleaded that she is wife of the petitioner but the petitioner in objection has mentioned that respondent No. 1 is not his legally wedded wife and has been divorced 22 years ago in 1995. In the back drop of petition of respondent No. 1 here into claim maintenance from the petitioner appears to be very doubtful. Had respondent has been divorced during the pending of application under section 488 Cr.P.C. the question would have been different. Court is generally hesitant in granting interim relief to the party where right of which the enforcement is sought under serious doubt. It is well settled position of the law that in order to sustain the grant of interim maintenance the petitioner must have been prima facie case. The finding of the trial court that the plea taken by the respondent herein cannot be accepted at this stage unless the respondent prove the divorce. It is well settled position of the law that in order to sustain the grant of interim maintenance the petitioner must have been prima facie case. The finding of the trial court that the plea taken by the respondent herein cannot be accepted at this stage unless the respondent prove the divorce. The existence of the relationship of the husband and wife is a condition precedent for grant of maintenance allowances U/Sec. 488 Cr.P.C. The court comes to the conclusion that till the plea of divorce is proved in accordance to the provision of law till then interim maintenance can be granted, the conclusion of trial court is not in term of provision of law and is not supported by Muslim Personal Law. The other question raised by the petitioner that the quantum has been awarded is on higher side. The petitioner submitted that the quantum of maintenance of Rs. 7000/- to respondent No. 2 is also on higher side. The petitioner submitted that his pension is only Rs. 22,777/-, however, as per revised pension under 7th pay commission, his pension comes to be Rs. 27,423/- as per the latest certificate issued by District Treasury Officer, Anantnag. So interim maintenance of 7000/- to respondent No. 2 is also on higher side in view of income of the petitioner. The certificate of pension is also attached by the petitioner in this revision petition." 7. From a perusal of the afore quoted observations of the learned Sessions Judge, it is clear that the learned Sessions Judge has taken the assertion of the respondent that he has divorced petitioner No. 1 as a gospel truth. A perusal of the trial Court record shows that the respondent has not placed on record any document that will even remotely suggest that he has divorced the petitioner No. 1. 8. It is a settled principle of evidence that when a fact is alleged by a party, the burden to prove the said fact lies upon the said party. A perusal of the trial Court record shows that the respondent has not placed on record any document that will even remotely suggest that he has divorced the petitioner No. 1. 8. It is a settled principle of evidence that when a fact is alleged by a party, the burden to prove the said fact lies upon the said party. In the instant case marriage between the petitioner No. 1 and the respondent is admitted but the respondent alleges that he has divorced the petitioner, so it is for him to prove that he had actually divorced the petitioner No. 1, but the learned Magistrate has ignored the settled principles of law of evidence by placing the burden of proof upon the wife that she has not been divorced which is unknown to law. Merely because the respondent has, in his objections before the trial Magistrate, contended that he has divorced the petitioner No. 1 would not absolve him of his duty to prove the said fact by leading cogent and convincing evidence before the trial Magistrate. 9. This Court in the case of Jamurad Begum v. Nazar Hussain & Anr., CRM(M) No. 357/2020, decided on 30.12.2020, has after noticing the law on the subject observed that a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his said wife, has not only to show that the divorce is validly pronounced in accordance with Muslim Law but he has also to show that the said divorce has been communicated to the wife. Special Leave Petition (Crl) No. 253/2022 against the aforesaid judgment stands dismissed by the Supreme Court in terms of order dated 02.02.2022. 10. In the instant case there was no material before the Revisional Court to even remotely suggest that these essential features were established by the Revision petitioner. The learned Revisional Court has at interim stage rendered an opinion on both the validity of the divorce as well as its pronouncement and communication to the wife in favour of the husband without any material on record. The finding of the learned Revisional Court in this regard is, therefore, not sustainable in law. 11. Coming to the quantum of maintenance that has been awarded in favour of petitioner No. 2, as already noted, she is undergoing higher studies and, in these times, a meager amount of Rs. The finding of the learned Revisional Court in this regard is, therefore, not sustainable in law. 11. Coming to the quantum of maintenance that has been awarded in favour of petitioner No. 2, as already noted, she is undergoing higher studies and, in these times, a meager amount of Rs. 7000/- per month is insufficient to take care of expenses of her studies and daily needs. Therefore, finding of the learned Revisional Court on this aspect of the matter is also unsustainable in law. 12. For the foregoing reasons, the petition is allowed and the impugned order passed by the revisional Court is set aside and the order of maintenance passed by the learned trial Magistrate is restored. 13. Copies of this order be sent to both the learned Courts below.