Abdul Hamid Mir vs Khalida

Sanjay Dhar, J

1) Petitioner has challenged order dated 25.04.2016 passed by learned Judicial Magistrate 1st Class, Pampore, in a proceeding under Section 488 of Jammu and Kashmir Code of Criminal Procedure, whereby learned Magistrate has decided the petition for grant of maintenance filed by respondent against the petitioner and awarded a monthly maintenance of Rs.3500/ in her favour.

2) I have heard learned counsel for the petitioner and perused the record.

3) The main ground urged by the learned counsel for the petitioner is that after the passing of impugned order, petitioner/husband has issued notices dated 03.10.2017 and 16.03.2018 to the respondent imploring upon her to resume matrimonial relations with the petitioner. It is further contended that the petitioner also filed a suit for restitution of conjugal rights before the Civil Court against the petitioner but all these efforts failed to bear any results and ultimately in terms of order dated 12.07.2020, issued by Islamic Court of Shariyat, marriage between petitioner and respondent stands dissolved. Petitioner has also relied upon divorce deed dated 28th September, 2021, whereby Talaq has been pronounced by him upon respondent.

4) In the backdrop of aforesaid subsequent developments, petitioner is seeking a direction for setting aside of the impugned order of maintenance passed in favour of the respondent.

5) It is not in dispute that the facts alleged by petitioner as regards his alleged efforts to resume matrimonial relationship with respondent and consequent pronouncement of divorce by him upon respondent were not before the learned Trial Magistrate at the time of passing of the impugned order. In fact, all these developments have, admittedly, taken place after the passing of the impugned order. The order impugned can be challenged by petitioner only on the basis of the facts and record which were before the Trial Magistrate at the time of deciding the petition and not those that have taken place thereafter. Therefore, the contention of learned counsel for the petitioner that the impugned order deserves to be set aside is without any merit.

6) However, Section 489 of J&K Cr. P. C, which is applicable to the instant proceedings, makes a provision for alteration in allowance on proof of change in the circumstances. It is, therefore, open to the petitioner to make an application under the aforesaid provision before the learned Trial Magistrate bringing to his notice the aforesaid change of circumstances for alteration or cancellation of the impugned order. If and when such an application is made by the petitioner before the learned Trial Magistrate, the same shall be dealt with by the learned Magistrate on its own merits, of course, after affording an opportunity of hearing to both the parties.

7) Petition stands disposed of along with connected applications.