The plea of divorce taken by the husband is no ground to refuse interim maintenance to a wife: J&K High Court

High-Court-of-J&K
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  • Post published:December 13, 2020
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The primary question before the Court was whether a wife is entitled to interim maintenance once a plea of divorce has been taken by the husband in his objections?

To understand the judgment lets know the facts of the case first.


The wife (Respondent herein) had filed an application under section 488 Cr.P.C. for grant of maintenance on the ground that the marriage between the petitioner-husband and respondent has been solemnized according to Muslim rites and rituals on 12.03.2014 and without any rhyme or reason, the petitioner herein has turned out the respondent-wife of her matrimonial home eight months prior to the filing of the application i.e. 02.07.2016.

The respondent-wife further stated that she was without any source of income and because of the neglect by the petitioner she had been residing with her brother.

The Petitioner-Husband filed the objections in which he has categorically stated that the respondent was a divorcee and was not entitled to any maintenance under Muslim Law. 

He pleaded that he had sent the divorce deed through registered post at her home address. The divorce has been witnessed by the witnesses and received by the respondent-wife. The petitioner-husband placed on record the copy of the divorce deed and also the postal receipt in support of his assertions.

He further pleaded that he worked as a Daily Wager and hardly earned Rs. 5,000/- per month and also, he had a liability of maintaining the old aged ailing parents.

Decision of the trial Court:

The learned trial court, vide order dated 26.12.2017 directed the petitioner to pay a sum of Rs. 2,000/- per month from the date of filing of the application, to the respondent as interim maintenance.

The aforesaid order was challenged before the Court of Revisions which upheld the order of the learned Magistrate.

Grounds taken by the Petitioner in this Petition:

The Petitioner-Husband assailed both the orders passed by the learned trial court as well as by the revisional court primarily on the ground that once the plea of divorce has been taken by the petitioner, the learned trial court ought to have desisted from granting any interim maintenance and also that the court of revision has passed the order without giving finding on the legal question of law and has erroneously upheld the order passed by the trial court.

Response of the Respondent:

The Respondent argued that the if the plea of the petitioner is accepted it shall defeat the very purpose of sec 488 Cr.P.C and also the validity of the divorce is the subject matter of trial and cannot be a ground for refusing the interim maintenance.

The issues considered by the High Court:

  1. Object and Purpose of Section 488 Cr.P.C
  2. Whether a wife is entitled to interim maintenance once a plea of divorce has been taken by the husband in his objections.

The High Court while considering this issue observed that interim relief has been decided by the trial court on the basis of admitted fact about the marriage between the parties in the year 2014 and whether there was valid talaq and whether talaqnama was communicated to the respondent are the disputed questions of facts those can be adjudicated upon only during trial and if the wife is denied any maintenance till the proof of the said fact, it will defeat the very purpose for which the Apex Court has evolved the principle of  grant of interim maintenance.

The Court further observed that once there is a plea of dissolution of marriage by a husband, the onus is always on the husband to prove the same by way of cogent evidence.

The respondent-wife cannot be denied interim maintenance solely on the plea taken by the petitioner-husband in his objections that he has sent the divorce deed to the respondent and when there is nothing on record to demonstrate that the respondent-wife has ever received the divorce deed particularly when the stand taken by the petitioner before the two courts is contradictory. 

Decision:

The Court while dismissing the petition held that merely taking a plea of divorce in the objections by the petitioner before the court below by narrating that he has sent the divorce deed to his wife through registered post and the same stands received by the wife would not disentitle the wife to get interim maintenance.

The Court held that “No fault can be found with the orders passed by both Trial Court as well as the Court of Revisions. The trial court has rightly granted the maintenance and also the order of the trial court has rightly been upheld by the revisional court.”  

The Court directed the petitioner to liquidate whole of the arrears of maintenance in six instalments with in the period of six months from today.

Judgments Referred:

Daniel Latifi and another v Union of India

Masarat Begum vs Abdul Rashid Khan and another.

Savitri v. Govind Singh Rawat.

Shamim Ara v State of Utter Pradesh, AIR 2002 SC3551

Shayara Bano v Union of India, reported in 2017(9) SCC 1.

Mohammed Shaffi Bhat versus Halima.

Shamim Akhter versus Shadab Anjum.

Mushtaq Ahmad Badyari V/s Ruquya Akhter

Download the original copy of the Judgment

Case No.-  CRMC 412 – 2018.

Bench: High Court of J&K at Srinagar

Date of Decision: 12-11-2020

For the Petitioner: Mr. Syed Musaib, Advocate

For the Respondent: Mr. Shafaqat Nazir, Advocate vice Mr. M. Ashraf Wani, Advocate

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