Ghulam Hassan Bhat vs Gulshan Akhter and Others

Syed Bashir-Ud-Din, J.—Nemo for petitioner though on previous date Mr. M. M. Dar, advocate appeared for petitioner.

The Munsiff, Judicial Magistrate, Chadoora by order dated 5.4.2003 in maintenance proceedings u/s 488 Cr. P.C. has awarded maintenance to

wife Gulshan Akhter at the rate of Rs. 200/- per month from the date of petition till the end of the period of 'Idat' and to the two children at the rate

of Rs. 1000/- and Rs. 800A per month on agreement and on consensus of the parties. The Ld. Sessions Judge has made reference recommending

modification of the impugned order to the extent that the agreed monthly maintenance awarded to wife till period of 'Idat' be quashed leaving her to

choose the remedy which she may have available under law.

Having gone through the record and taking note of legal position annunciated in some decisions of this court, the reference appears incompetent.

The award of interim maintenance to the wife for the period ending ""Idat"" to which she is entitled, should be taken covered by the welfare provision

of Section 488 CR. P.C. It won't serve the ends of justice to drive wife to separate proceedings to seek maintenance for the period when under

Personal Law for some specified purpose the marriage-bond is considered to continue even during 'Idat' period. In that sense of the matter, the

order cannot be stated to be vitiated. This apart, even the order of reference and the record shows that the impugned order providing maintenance

to the wife till 'Idat' period, apart from maintenance of the children, is on agreement of the parties after their Ld. counsel tendered statements

before the Judicial Magistrate Chadoora of having settled the maintenance claim and amount to the mutual satisfaction of the parties as contained

and referred to in the order of the Magistrate and the order of reference. The hyper technical interpretation placed on 'Idat' in the context of this

consensual agreement between the parties also would not serve the ends of justice. If the impugned order is allowed to stand in entirety, it would

serve parties well. If the lady, divorced wife, is driven to separate proceedings and thereby made to suffer for litigative expenses and adding to the

inconvenience of the parties, it would provide parties opportunity to again get locked into further litigation and give room for unsettling the feud

which, otherwise, is settled by the parties by mutual consent.

Having regard to all that stated above, this reference is turned down and the order of the trial Magistrate is upheld. Disposed of. Inform both

courts of this order. Send back the record.