Jammu & Kashmir High Court
Mushtaq Ahmed vs Shahnaz Akhter And Another on 27 February, 2023
13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRR No. 72/2016
Mushtaq Ahmed .....Appellant(s)/Petitioner(s)
q
Through: Mr. M. R. Quershi, Advocate
vs
Shahnaz Akhter and another ..... Respondent(s)
Through: Mr. M. I. Sherkhan, Advocate
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
1. The petitioner has challenged order dated 28.10.2016 passed by the
Judicial Magistrate 1st Class, Mendhar, whereby monthly maintenance
in favour of the respondents has been enhanced from Rs. 3000/- to
Rs. 5000/-.
2. It appears that respondent No. 1, who claims to be the wife and
respondent No. 2, who claims to be the minor son of the petitioner, filed
a petition under section 488 of the Jammu and Kashmir Code of
Criminal Procedure before the learned trial Magistrate. The learned trial
Magistrate on the basis of the evidence on record passed judgment and
order dated 28.01.2011 whereby respondent No. 1, the wife of the
petitioner was held entitled to monthly maintenance of Rs. 2000/-
whereas the minor son, respondent No. 2 was found entitled to monthly
maintenance of Rs. 2000/- per month. It seems that the aforesaid
judgment/order was challenged by the petitioner by way of a revision
petition before the court of Principal Sessions Judge, Poonch who vide
his order dated 23.11.2011 slashed down the amount of maintenance
and directed that each of the respondents shall be entitled to monthly
maintenance of Rs. 1500/- per month.
3. Subsequently, respondents moved an application under section 489
Cr.P.C. before the learned trial Magistrate seeking enhancement of
maintenance. In their application, it was submitted by the respondents
that after a lapse of more than three years, there has been escalation of
prices and respondent No. 2, minor son of the petitioner, is now
studying in a private school. It was further claimed that the petitioner is
a Government employee drawing monthly salary of about Rs. 25,000/-
to Rs. 28,000/- and as such, the respondents should be paid enhanced
maintenance at the rate of Rs. 3,000/- each per month.
4. Learned trial Magistrate issued notice to the petitioner but he failed to
contest the petition and after recording ex parte evidence, the learned
Magistrate passed the impugned order thereby enhancing the monthly
maintenance of respondent No. 1 to Rs. 3,000/- per month and that of
respondent No. 2 to Rs. 2000/- per month (total Rs. 5,000/-).
5. The petitioner has called in question the aforesaid order on the grounds
that respondent No. 1 has been divorced by him and as such, she is no
longer entitled to any maintenance. It has been submitted that the
petitioner has re-married and he has four children from his second
marriage. Thus, according to the petitioner, it will be difficult for him to
pay Rs. 5000/- per month to the respondents. It has also been submitted
that even respondent No. 1 has re-married, thereby disentitling herself
to grant of maintenance.
6. I have heard learned counsel for the parties and perused the record.
7. So far as the plea of divorce raised by the petitioner is concerned, the
same has been gone into by learned trial court while passing its order
dated 28.01.2011. After appreciation of the evidence, the learned trial
court has come to the conclusion that divorce has not been pronounced
upon respondent No. 1 nor was it brought to her knowledge by the
petitioner. It is in these circumstances that learned Magistrate initially
granted maintenance of Rs. 2000/- per month in favour of respondent
No. 1 which was slashed down to Rs. 1500/- per month by the learned
Sessions Judge. These findings have not been overset by any court. In
fact the challenge laid by the petitioner to judgment dated 28.01.2011
passed by the learned trial court as also the judgment dated 23.11.2011
passed by the revisional court, has been declined by this Court
inasmuch as the petition filed by the petitioner under section 482
Cr.P.C. before this Court, has been dismissed in terms of order dated
24.07.2020, whereafter even a petition for recall of this order has been
dismissed by this Court vide order dated 06.10.2022. In face of this
situation, the petitioner cannot raise the plea of divorce in these
proceedings.
8. The second contention raised by the learned counsel for the petitioner is
that the salary of the petitioner is not good enough to take care of the
needs of respondents as well as the needs of his newly acquired family.
Learned counsel for the petitioner has produced the salary certificate of
the petitioner, according to which, he was drawing a gross salary of Rs.
22,618/- in the year, 2016. Having regard to the status of the parties and
the requirement of a moderate household, an amount of Rs. 5,000/- per
month awarded by the learned trial Magistrate can by no stretch of
imagination be termed as exorbitant. In fact, the same appears to be on a
lower side. The impugned order passed by the learned Magistrate while
enhancing the quantum of maintenance in favour of the respondents
does not call for any interference.
9. So far as contention of the petitioner that respondent No. 1 has
re-married is concerned, the said contention was not raised by the
petitioner either at the time of disposal of the original petition filed
under section 488 Cr.P.C. or at the time of consideration of application
for enhancement of maintenance. In fact, the petitioner did not
participate in the proceedings when the application for enhancement of
maintenance was considered by the learned Magistrate. If it is a fact that
respondent No. 1 has re-married, the petitioner is at liberty to bring this
fact to the knowledge of the learned Magistrate by way of an
appropriate motion and seek modification/cancellation of order of
maintenance granted in favour of respondent No. 1.
10. For the foregoing reasons, I do not find any ground to interfere with the
impugned order. The present petition lacks merit and is dismissed.
(SANJAY DHAR)
JUDGE
Jammu
27.02.2023
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
