Jammu & Kashmir High Court
Bader Din Chechi vs Tazeem Akhter on 5 July, 2021
Sr. No. 215
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRR No. 17/2019
Bader Din Chechi
...Petitioner(s)
Through:- None
v/s
Tazeem Akhter
.... Respondent(s)
Through:- None
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
1. Order dated 07.12.2018 passed by the trial court whereby
petitioner has been directed to pay interim maintenance @ ₹ 2000/- per
month to the respondent has been called in question in this revision petition
on the following grounds:-
a) That the order impugned dated 07.12.2018 has been passed in glare
violation of the provisions of law hence the order impugned is required
to be set aside out rightly.
b) That the order impugned has been passed in violation of mandate of
law settled by the Hon'ble Supreme Court as well as different High
Courts from time to time hence the order impugned deserves to be set
aside.
c) That the court below has passed the order impugned without
application of mind and without appreciating the objections filed by
the petitioner in the petition under Section 488 Cr.P.C filed by the
respondent that too after she was being divorced by the petitioner,
hence the order impugned deserves to be set aside.
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d) That it is well settled in the Muslim Law that the respondent is not
entitled to any maintenance after being divorced by the petitioner.
Hence the order impugned deserves to be set aside.
e) That the order of interim maintenance is not provided in any statute
but it is because of the judgment of the Hon'ble Apex Court.
f) That the order impugned dated 07.12.2018 is against facts and law
and as such the same required to be set aside/quashed.
g) That the court below has passed the order by excess to its jurisdiction
and also the question of law involved in the present revision petition,
hence the present revision petition is required to be allowed.
2. On the previous date the petitioner remained unrepresented and it
was made clear that in the event the petitioner again remains unrepresented
on the next date fixed, the matter would be considered and decided on merits.
Since no one is present on behalf of the petitioner today, the matter is taken
up for consideration on merits.
3. As is evident from the order impugned, the petitioner had married
one Tazeem Akhter, respondent herein in the year 2012 in accordance with
Muslim law. It has been alleged by the respondent that she had been
neglected by her husband and having failed to provide maintenance to her,
she approached the trial court and filed a petition under Section 488 Cr.P.C.
Petitioner was respondent before the trial court and after being summoned, he
filed the objections to the petition filed under Section 488 Cr.P.C as well as
to the application seeking grant of interim maintenance. The petitioner
pleaded before the trial court that after the death of the first husband of the
respondent herein, he married her and was providing maintenance to her, but
after some time she started quarrelling with him and since she did not mend
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her ways he divorced her. It is pleaded by him that divorce deed was also
served upon the respondent. Petitioner thus, on the ground of having divorced
the respondent claims that he is not entitled to pay any maintenance to her
under the law.
4. The trial court after taking into consideration the provisions of
Section 488 Cr.P.C and also having taken note of the divorce deed allowed
the application for grant of interim maintenance. The trial court observed that
certain formalities are to be fulfilled before pronouncement of divorce and
the fact that whether the petitioner herein has validly pronounced Talak, is
to be seen during the trial and this fact has to be proved by the petitioner
herein i.e., respondent before the trial court. The trial court thus, rejected the
plea raised against the grant of interim maintenance and passed the order
impugned.
5. I have considered the grounds taken in the revision petition as
well as the order impugned.
6. Section 488 of the Code of Criminal Procedure provides for
maintenance to the discarded woman, children, and parents. The purpose of
incorporation of the said provision in the Code of Criminal Procedure is to
prevent such person from being subjected to starvation and to prevent them
from vagrancy when such person has no source of income. The husband has a
duty towards his wife to maintain her and to provide maintenance. He cannot
neglect his wife, and subject her to starvation and in order to prevent her
from being subjected to starvation legislative has made provisions for
providing maintenance under Section 488 Cr.P.C.
7. The petitioner herein before the trial court had raised the plea of
divorce, but before holding that pronouncement of divorce is valid, she
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cannot be refused maintenance by her husband. The petitioner has to show
before the trial court that the requirements for a valid divorce were fulfilled
and divorced was valid. Before it is held so, the divorce pleaded by the
petitioner cannot be a ground to disentitle her from claiming maintenance.
Till such plea is established the petitioner, respondent herein is entitled to
claim maintenance from him.
8. The trial court while taking into consideration the aforesaid plea
and holding that such a plea requires proof has observed that till such plea is
established the divorce deed cannot be considered as valid proof, the
respondent cannot be deprived of the interim maintenance. Thus, the
impugned order passed by the trial court, in my opinion does not suffer from
any illegality or irregularity and the same is upheld. The plea taken by the
petitioner is required to be proved and till it is proved respondent-petitioner
herein shall pay interim maintenance as granted by the trial court as she has
no source of income of her own to maintain herself.
9. In this view of the discussion made above, there is no merit in the
instant revision petition which is, accordingly, dismissed.
10. A Copy of this order be conveyed to the trial court.
11. Trial court is directed to proceed with the trial of the case in
accordance with law and enforce the order granting interim maintenance.
( Vinod Chatterji Koul)
Judge
Jammu
05 .07.2021
Bir
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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