Mohd. Razaq vs Irfat Bi
2021 Latest Caselaw 1452 j&K

                                                                           Sr. No.



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU


                                                CRMC No. 636 of 2017 (O&M)
                                                c/w
                                                CRR No. 22 of 2015 (O&M)


                                                  Reserved on:           27.10.2021
                                                  Pronounced on:         12.11.2021


Mohd. Razaq                                               .....Appellant/Petitioner(s)

                                 Through :- Mr. A. K. Shan, Advocate.

                          v/s

Irfat Bi                                                           .....Respondent(s)

                                 Through :- Mr. H. A. Siddiqui, Advocate


Coram:        HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                  JUDGMENT

CRR No. 22 of 2015

1. The present criminal revision has been filed against judgment dated

04.04.2015 passed by the learned Judicial Magistrate 1st Class (JMIC),

Mendhar (hereinafter to be referred as 'the trial court') by virtue of which, the

petitioner has been directed to pay maintenance of Rs. 1800/- per month to the

respondent.

2. Briefly stated the facts necessary for disposal of the present revision

petition are that the respondent herein had filed a petition under Section 488 of

Cr.P.C. before the learned trial Court for grant of maintenance on the ground

that she had solemnized marriage with the petitioner twenty five years ago

according to Muslim personal law and in the year 2004, the petitioner

contracted second marriage. Due to second marriage, an altercation started

between them and four months thereafter, the respondent was beaten and

thrown out of her matrimonial home by the petitioner.

3. Petitioner filed his objections to the petition under Section 488

Cr.P.C. in which it was stated that he had divorced the respondent on

28.05.2010 after giving her Mehar and returning dowry items to her. Divorce

deed was sent to the respondent through registered post. Therefore, she was not

entitled to any maintenance. It was also stated that the divorce was pronounced

in presence of witnesses and as per Shariat, a Fatwa was also given by Mufti

Jalla-lu-din on 27.05.2010 wherein he stated that the divorce had taken place.

4. The petitioner, besides examining himself, has examined Mohd.

Razak S/o Mirza, Abdul Rahim S/o Noor Din, Khadam Hussain S/o Juma,

Akbar Hussain S/o Fazal Din, Mohd. Issaq S/o Mohd. Hussain and Mohd.

Rashid S/o Shaba in support of his case whereas the respondent, besides

examining herself as a witness, also produced witnesses, namely, Mohd.

Sharief S/o Syed Hussain, Mohd. Sharief S/o Hassan Mohd., Mohd. Kushad

S/o Bashir Mohd and Abdul Aziz S/o Mirza.

5. Learned trial Court after hearing both the parties directed the

petitioner to pay maintenance of Rs. 1800/- per month to the respondent.

Initially the respondent had filed a petition for grant of maintenance for her son

also. However, during the pendency of the petition under Section 488 Cr.P.C.

the custody of the son was handed over to the petitioner pursuant to order

passed by the learned District Judge Poonch.

6. In the present petition, the petitioner has assailed the order impugned

primarily on the ground that the divorced wife is not entitled to maintenance as

the petitioner had divorced the respondent and had sent the talaknama to her

through registered post. It is further urged that the learned trial Court has

wrongly held that the petitioner has not been able to prove that he had divorced

the respondent properly.

7. Mr. A. K. Shan, learned counsel appearing for the petitioner

vehemently argued that the petitioner had led evidence and had produced the

marginal witness to the divorce deed to prove the factum of divorce, but the

learned trial Court has not appreciated the same.

8. Per contra, Mr. H. A. Siddiqui, learned counsel appearing for the

respondent also vehemently argued that the divorce has not been proved by the

petitioner and further that no evidence was led by the petitioner with regard to

the fact that the divorce deed was sent to the respondent.

9. Heard learned counsel for the parties and perused the record.

10. Learned trial Court has rejected the claim of the petitioner with

regard to the divorce pleaded by the petitioner in his response on the ground

that the divorce deed reveals that the petitioner uttered divorce three times i.e.

talak to the respondent but the presence of respondent in the Court Complex of

Poonch where divorce deed was written is not admitted by anybody including

the petitioner. Neither the petitioner nor the witness to the divorce deed stated

that the respondent was present there at the time of pronouncement of talak to

her. One of the witnesses, namely, Mohd Issaq, who was produced by the

petitioner to prove the divorce deed, did not support him and stated that

signature on the divorce deed were not his signatures. The another attesting

witness, namely, Akbar Hussain stated that the divorce has taken place in the

house of the petitioner, but it was written in the Court Complex, Poonch. The

trial Court further observed that there is nothing on record to demonstrate that

the divorce deed was sent to the respondent by registered post. The trial court

also observed that as per the petitioner, first talak was given on the day when

Fatwa was given, the second talak was given after two days and third talak was

given on 05.06.2010 whereas there is nothing on record to demonstrate that the

respondent has given three talaks at three different occasions.

11. On the basis of above findings returned by the learned trial Court, the

plea of divorce taken by the petitioner was rejected. A perusal of the divorce

deed dated 28.05.2010 reveals that the petitioner has pronounced talak three

times to the respondent. The triple talak has already been declared invalid by

Hon'ble the Supreme Court in case titled Shayara Bano v. Union of India 2017 (9)

SCC 1, as such, even if the petitioner has pleaded the plea of talak, the same is

of inconsequence.

12. Be that as it may, there is nothing on record to suggest that the

talaknama was sent to the respondent by the registered post as neither the

receipt was placed on record nor the postman was examined by petitioner to

demonstrate that the talaknama was handed over to the respondent. The

contention of Mr. Shan that the respondent, while receiving the dowry articles,

executed a receipt in which it was mentioned that the respondent was divorced

by the petitioner, is also not sustainable as learned trial court has already held

that the petitioner has placed on record the photo copies of documents those

cannot be relied upon.

13. This Court while exercising the power of revision cannot re-

appreciate evidence and the finding recorded by the trial Court cannot be

termed as perverse. The petitioner has been directed to pay a meager amount of

Rs. 1800/- per month to the respondent and the same cannot be termed as

exorbitant or excessive in nature rather the amount granted to the respondent is

in-sufficient for her sustenance.

14. In view of what has been discussed above, the present petition is

found to be misconceived and the same is, accordingly, dismissed. The

respondent shall be at liberty to seek the enhancement of the maintenance by

laying an appropriate motion before the trial Court. The petitioner is directed to

deposit whole of the arrears of maintenance before the trial court within a

period of three months from today, failing which, the trial court shall be at

liberty to resort to the coercive process as prescribed under the law.

CRMC No. 636 of 2017

15. The present petition has been filed by the petitioner for quashing of

application seeking execution of maintenance granted to the respondent under

Section 488 Cr.P.C. The validity of the order granting maintenance was

pending in the revision petition that stands dismissed. The order has attained

finality now. As such, this petition filed under Section 561-A Cr.P.C also

stands dismissed.

(RAJNESH OSWAL) JUDGE JAMMU 12.11.2021 Paramjeet

Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No