The Jammu and Kashmir High Court recently comprising of a bench of Justice Rajnesh Oswal observed that since no iota of evidence of divorce has been given by the petitioner, hence he is liable to pay interim maintenance under Section 488 CrPC. (Abdul Majeed Dar V Hafiza Begum And Anr)
The bench remarked that 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.
Facts of the case
The present petition was filed by the petitioner for quashing the order passed by Trial Court as well as the order passed by the learned Principal Sessions Judge, whereby the petitioner was directed to pay maintenance under Section 488 Cr.P.C to the alleged divorcee lady.
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 and therefore the petitioner herein was not under any obligation to maintain divorced lady.
Contention of the Parties
The counsel for the petitioner herein has 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.
On the other hand, Mr. Shabir Ahmad 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 the present petition.
Courts Obsrervation & Judgment
The bench noted “the petitioner has not been able to prove as to on which date the divorce was pronounced upon the respondent as the petitioner did not record his statement and simultaneously the trial court has observed that witness has simply stated that respondent 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 bench noted that the learned Magistrate in his order has referred to the judgment in Shameem Ara Versus State of U.P [AIR 2002 S.C. 355] and 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 if the plea of Talak is taken then the same is required to be proved like any other fact.
The court dismissing the petition remarked, “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 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. Furthermore, the petitioner has not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak.
In view of what has been discussed above, this Court does not find any reason, whatsoever, to interfere with the orders impugned, as such, instant petition is found to be without any merit, same is dismissed accordingly.”
Read Judgment @Latestlaws.com
Picture Source :
