Bhajan Singh vs Tejinder Kour and Others

Bansi Lal Bhat, J.â€"Through the medium of instant petition filed under section 561-A of CrPC, petitioner seeks quashment of order dated

29.01.2013 passed by learned Munsif (JMIC) Jammu in proceedings under Section 488 CrPC titled Tejinder Kour and Anr. v. Bhajan Singh by

virtue whereof petitioner was directed to pay a sum of Rs. 5500/- per month to the respondents who are his wife and minor daughter as interim

maintenance. Petitioner also assails the order formulated by learned 2nd Additional Sessions Judge Jammu dated 13.05.2013 in revisional

proceedings upholding the impugned order passed by the Magistrate. The impugned orders have been assailed on the ground of non-application of

mind and non-adherence to requirement of law. In a nutshell, the case set up by respondents before the learned Magistrate for enforcing their claim

for maintenance under Section 488 CrPC was that the petitioner no 1 was the legally wedded wife of present petitioner and respondent No. 2 was

born out of said wedlock; that the present petitioner, despite being possessed of sufficient means, had neglected and refused to maintain the

respondents who were unable to maintain themselves. Plea put up by petitioner before the learned Inquiring Magistrate was that he had divorced

respondent No. 1 in accordance with the custom prevalent in the family and society of petitioner and thus relationship between the present

petitioner and respondent No. 1 as husband and wife no more subsisted, as such the petitioner was not liable to pay maintenance allowance to the

Respondents. It appears that during the pendency of proceedings under Section 488 CrPC respondents filed an application for grant of interim

maintenance which too was contested by the present petitioner on the plea of customary divorce. Learned Magistrate passed the impugned order

allowing a monthly interim maintenance of Rs. 3000/- in favour of respondent-wife and Rs. 2500/-in favour of respondent-minor daughter till

disposal of the main petition. The learned Magistrate noticed that the factum of marriage inter se the present petitioner and respondent No. 1 as

also the birth of respondent No. 2 out of the said wedlock was an admitted position and the plea of customary divorce taken by present petitioner

was to be proved at the trial. Learned Magistrate observed that mere taking of plea would not absolve the husband from liability of maintaining his

wife. It further observed that insofar as minor daughter was concerned, she was entitled to maintenance notwithstanding the plea of divorce raised

by present petitioner before the Inquiring Magistrate. In Revisional proceedings learned 2nd Additional Sessions Judge affirmed the view of

learned Inquiring Magistrate that the plea of dissolution of marriage between parties by mutual consent had to be proved by the present petitioner

during enquiry in the main petition and no intervention was required.

Heard the rival sides and perused the record.

Mr. Saini learned counsel for petitioner submits that marriage between petitioner and respondent No. 1 was dissolved with the intervention of

Mahant Manjit Singh of Dera Nangali Sahib Digiana Ashram Jammu to which both parties consented and besides returning of dowry articles,

respondent No. 1 was paid an amount of Rs. 2.00 lacs by petitioner towards full and final settlement of claim of maintenance of respondents. It is

further submitted that respondent wife had agreed to deposit Rs. 1.00 lac out of the received amount in the name of her minor daughter and further

agreed not to stake any claim for maintenance in future. Reference is made to mutual divorce deed executed between petitioner and respondent

No. 1 on 16.01.2004. It is contended that since respondent No. 1 ceased to be the wife of petitioner and the claim of respondents for

maintenance had been satisfied through the mode of lump-sum payment of Rs. 2.00 lacs made at the time of execution of the divorce deed, claim

of respondents for maintenance, absolute or interim, was not entertainable. Per contra, learned counsel for respondents, while disputing the factum

of divorce by mutual consent and payment of maintenance amount in lump-sum, contended that the marriage between the spouses could not be

dissolved in the manner suggested. He further submitted that the burden of proof regarding the plea of divorce by mutual consent rested upon the

petitioner and finding on such plea could be returned only after full-fledged enquiry in the proceedings under Section 488 CrPC. It is contended

that meanwhile respondents could not be denied interim maintenance.

The factum and validity of marriage between the spouses i.e. petitioner and respondent No. 1 is an admitted fact. That respondent No. 2 is the

girl-child born out of such wedlock is also not disputed. It appears that the respondents put forth their claim for maintenance on the ground that the

present petitioner has, despite being possessed of sufficient means, neglected and refused to maintain them. This is contested by the present

petitioner who claims that the marriage between him and respondent No. 1 stands dissolved by mutual consent and that he has paid an amount of

Rs. 2.00 Lacs towards full and the final settlement of claim of respondents for maintenance. Parties are Sikhs by faith and the marriage has been

solemnized under the Hindu Marriage Act. Petitioner in the instant petition, being the husband and father of respondent Nos. 1 and 2 respectively,

is under a legal obligation to maintain his wife and minor child who are unable to support themselves. Burden of proof of the plea that the marriage

has been dissolved between the spouses through a lawful mode recognized by law rests upon the present petitioner who has taken such plea. It is

alleged by the respondents that the petitioner obtained signatures of respondent No. 1 on a paper by mis-representation of facts. Thus, the

signature of respondent No. 1 on Divorce Deed is alleged to have been obtained fraudulently. In the backdrop of allegations in the petition under

Section 488 of Cr.P.C. filed by respondents, it is for the petitioner herein to establish that the marriage between the spouses has been lawfully

dissolved. It is well settled that a Hindu marriage cannot be dissolved in any manner otherwise than by obtaining a decree for divorce. Hindu

Marriage Act, 1980 provides the grounds available to either of the spouses to claim divorce. The Act also provides for divorce by mutual consent

of the spouses. No mode other than the judicial intervention for obtaining divorce is recognized under Hindu Marriage Act for dissolution of a

Hindu marriage. Section 4 of Hindu Marriage Act, 1980 emphatically provides that the Act has an overriding effect and any custom or usage in

conflict with the provisions of the Act shall cease to have effect. However, any right recognized by custom or conferred by any special enactment

to obtain the dissolution of a Hindu marriage is saved under Section 36(3)(b) of the Hindu Marriage Act. The burden of proving the existence of a

custom recognizing right of a spouse to obtain divorce rests upon the present respondent who may be required to establish that such custom has

been in existence since times immemorial, followed uninterruptedly and that such custom is not opposed to public policy or against a statute. Such

custom has to be pleaded and proved by the husband, i.e., the present petitioner. Unless and until the existence and validity of such custom, being

judicially recognized, is established by the petitioner, subsistence of marriage between the present petitioner and respondent No. 1 is presumed

and all necessary consequences including husband's obligation to maintain his wife and father's obligation to maintain his minor children unable to

support themselves continues. Learned counsel for petitioner has referred to a number of judicial pronouncements laying down the ratio that onus

of proof lies upon the wife to show that she was justified in living separately for claiming maintenance and that divorce by mutual consent would not

entitle the wife to maintenance. There is no dispute with these propositions of law. If the wife fails to prove that the husband had neglected or

refused to maintain her or that she had a just ground for refusing to live with her husband, she would not be entitled to claim maintenance. The

determination of these issues rests upon the proof adduced during enquiry. The plea of husband in a given case that the marriage has been

dissolved or that the wife is living in adultery or that the spouses are living separately by mutual consent has to be proved at the enquiry. In so far as

grant of interim maintenance is concerned, it is sufficient for the wife to show existence of a prima facie case that she has been neglected or the

husband has refused to maintain her. The question of consideration of a plea raised by husband constituting a probable defense to the claim of wife

arises only during enquiry and not at the very outset. That would defeat the purpose of the legislative provision engrafted under Section 488 of

CrPC which is aimed at preventing vagrancy and starvation.

In the given circumstances, question of respondent No. 1 having ceased to be the wife of petitioner in consequence of customary divorce

pleaded by petitioner cannot be considered at the stage of grant of interim maintenance and respondent-wife cannot be asked to justify her case

for separate maintenance as her very status as wife is denied by the petitioner herein who has pleaded customary divorce by mutual consent of the

parties. Thus viewed, the impugned orders awarding interim compensation of Rs. 3000/- and Rs. 2500/- to respondent- wife and child

respectively cannot be termed as abuse of process of law justifying quashing of such orders. I find no illegal infirmity in the impugned orders which

stand the scrutiny of law and do not call for invoking of inherent jurisdiction of this Court warranting its quashment. The petition being devoid of

merit is dismissed. Record be sent back to the Inquiring Magistrate.