Abdul Majeed Dar vs Hafiza Begum And Anr
2021 Latest Caselaw 483 j&K/2

Citation : 2021 Latest Caselaw 483 j&K/2
Judgement Date : 26 April, 2021

Jammu & Kashmir High Court - Srinagar Bench

Abdul Majeed Dar vs Hafiza Begum And Anr on 26 April, 2021

                               HIGH COURT OF JAMMU AND KASHMIR
                                           AT SRINAGAR
                                                            Reserved on 17.03.2021
                                                         Prouounced on 26.03.2021
                                                                CRMC No.364/2018
              ABDUL MAJEED DAR                                          ...Petitioner/Applicant(s)

                                   Through :- Mr. Parvaiz Nazir, Advocate
                                  V/s
                                    <




              HAFIZA BEGUM AND ANR.
              't
                                                                               .....Respondent (s)

                                    Through :- Mr. Shabir Ahmad, Advocate
              Coram:           HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                             JUDGMENT

1. The present petition has been filed by the petitioner for quashing the order

dated 29th April, 2017 passed by Sub-Judge JMIC, Pattan (hereinafter

referred to as the "trial court") as well as the order dated 7th August, 2018

passed by the learned Principal Sessions Judge, Baramulla, , whereby the

petitioner has been directed to pay maintenance to the allegedly divorcee

lady. However,

2. The only ground which the petitioner has raised in the present petition is

that he had already divorced his wife vide „Talaq Nama‟ dated 2nd August,

2011 which was sent to her through registered post.

3. From the perusal of the record it transpires that the respondent(wife) had

filed a petition for grant of interim maintenance under Section 488 Cr.P.C

against the petitioner herein who contested the said petition before the trial

court on the ground that he had already divorced her on 2nd August, 2011

and as such, the petitioner herein was not under any obligation to maintain

divorced lady. The respondents herein in support of their case had

examined the witnesses namely Abdul Rashid Wani, Ghulam Hassan and

Ghulam Hassan Dar, whereas the petitioner herein had examined Ghulam SHAMEEM HAMID MIR 2021.04.02 14:48 I attest to the accuracy and integrity of this document P a g e |2

Hassan Hajam, Abdul Hamid Dar, Ghulam Hassan, Mohammad Yousuf

and Ghulam Mohi-ud-din(Postman). The learned trial court after

considering the evidence led by both the parties and after hearing the

arguments from both the sides granted maintenance of Rs.2000/= (Rupees

Two thousand) per month to each of the respondents. The petitioner herein

assailed the said order before the Court of learned Principal Sessions Judge,

Baramulla by virtue of revision in which the sole ground was that the

petitioner was not under any obligation to maintain his divorced wife so the

order passed by the trial court vis-à-vis grant of maintenance to the non-

applicants in the revision petition be set-aside. However, the learned

Revisional Court vide order dated 7th August, 2018 dismissed the said

petition.

4. Learned counsel for the petitioner herein has vehemently argued that he

had proved the divorce by examining the scribe of the divorce deed and

also the postman who delivered the registered letter to the respondent

herein.

5. Per contra, Mr. Shabir Ahmad, vehemently argued that the petitioner had

miserably failed to prove the divorce before the learned trial court and the

said finding based on evidence has not been interfered by the court of

revision and now the petitioner cannot dispute the said finding through the

medium of present petition.

6. Heard and considered.

7. The perusal of the order passed by the learned trial court reveals that the

learned Magistrate has held that the petitioner has miserably failed to prove

the requisites of Talaq and also that Talaknama was sent to the respondent no.1.

SHAMEEM HAMID MIR 2021.04.02 14:48 I attest to the accuracy and integrity of this document P a g e |3

8. Needless to mention here that if the plea of Talak is taken then the same is

required to be proved like any other fact. The learned Magistrate has

recorded that the petitioner has not been able to prove as to on which date

the divorce was pronounced upon the respondent(wife), as the petitioner

did not record his statement and simultaneously the trial court has observed

that witness Ghulam Hassan Hajam has simply stated that Mst. Hafeeza

was divorced by her husband but has not stated in which month and which

year she was divorced. The learned trial court has also observed that the

delivery of the envelope is also doubtful as the postman has not seen any

such record in which he has obtained signatures of the respondent. The

learned Magistrate simultaneously has observed that none of the witnesses

produced by the petitioner herein has stated whether any-one tried to

reconcile the parties before the divorce or who was present from the side of

the respondent (wife) and the petitioner.

9. While referring the judgment reported in AIR 2002 S.C. 355 titled

Shameem Ara Versus State of U.P., the learned Magistrate in his order has

disbelieved the plea of divorce taken by the petitioner in his pleadings. The

learned court of revision has also upheld the said finding. Needless to

mention here that the law laid down in Shameem Ara (Supra) has been

affirmed by the Supreme Court in Sharaya Bano Versus Union of India

reported in 2017 (9) SCC 1. Under Section 561-A Cr.P.C (now 482

Cr.P.C) the Court can exercise powers only for the purpose of securing

ends of justice or to prevent the abuse of law.

10.So far as the instant case is concerned, this Court does not find any

substance in the contentions raised by the petitioner herein that he has

successfully proved the divorce particularly in view of the fact that the SHAMEEM HAMID MIR 2021.04.02 14:48 I attest to the accuracy and integrity of this document P a g e |4

petitioner has not bothered to appear as his own witness before the trial

court. More-so there is not even an iota of evidence that any reconciliation

efforts were made by two arbiters one chosen by the wife from her family

and the other by the husband from his family. So there is no perversity in

the finding returned by the learned Magistrate and upheld by the learned

court of revision that the petitioner has not been able to prove the plea of

Talak taken in his objections. Furthermore, the petitioner has not led any

evidence as to who sent the divorce to the respondent (wife) to prove the

plea of Talak. Otherwise also a meager amount of Rs.2000/- (Rupees Two

thousand) as has been awarded to the respondent no.1 herein, that in the

present era of inflation can in no way be termed as either exorbitant or

excessive.