Manzoor Ahmad Chechi vs Parmeena Begum

The petitioner has invoked the inherent power of this Court conferred by Section 561-A CrPC (now repealed) for setting aside the order of interim

maintenance dated 2nd December, 2017 passed by the Court of Judicial Magistrate, Handwara.

Impugned order has been assailed by the petitioner primarily on the ground that his defence taken in the objections that he had divorced respondent

by pronouncement of Talak to her has not been considered by the learned Magistrate while granting monthly interim maintenance of Rs.3000/- in

favour of the respondent.

It is submitted that petitioner and respondent got married in the year 2014 but conduct of the respondent all along remained unbecoming of an

obedient and prudent Muslim wife which constrained the petitioner to divorce the respondent and pronounce Talak in the presence of witnesses. The

petitioner also claims to have executed a divorce deed in this behalf on 17th August, 2018 and conveyed and communicated to the respondent through

registered post. It is stated by the petitioner that immediately on receipt of the divorce deed, the respondent filed an application for grant of

maintenance under Section 488 CrPC in the court of learned Judicial Magistrate, Handwara, and also claimed interim maintenance. It is submitted that

respondent in her application did not make any mention about the divorce between the parties and thus suppressed material fact from the Court. On

being put on notice, the petitioner filed his objections and took the specific plea of divorce having been pronounced by him on 17th August, 2018 and

prayed for dismissal of the applicant for maintenance on the ground that a divorced Muslim wife was not entitled to any maintenance.

The application for interim maintenance came to be considered by the learned Magistrate who vide order impugned granted maintenance of

Rs.3000/- in favour of the respondent from the date of application.

It is this order of the learned Magistrate which is called in question by the petitioner through the instant petition.

Having perused the record, I am of the considered view that the order impugned passed by the learned Judicial Magistrate, Handwara, is perfectly

legal and falls within the four corners of law and therefore, cannot be interfered with.

The plea of the petitioner that he has divorced his wife and therefore not liable to pay any maintenance cannot be a ground to reject the application

of the respondent for grant of interim maintenance. There is presumption with regard to subsistence of the marriage and, therefore, strong proof is

required to rebut such presumption by a person, who alleges disruption or cessation of the status. It is true that in this case, the petitioner has taken a

plea of divorce which is required to be proved by petitioner by leading evidence during the course of trial in the application for grant of maintenance.

However, such plea which is yet to be substantiated and proved cannot be a ground to refuse interim maintenance to the wife. The issue involved has

elaborately considered by a Coordinate Bench of this Court in the case of Mushtaq Ahmad Badyari v. Ruquya Akhter, CRMC No.41/2018 decided on

12.11.2020.

In the said case, it has been held thus:

“Thus 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.â€​

The petitioner has not disputed the grant of maintenance on merits and, therefore, other aspects of the matter need not to be gone into.

For the aforesaid reasons, I find no merit in this petition and the same is accordingly, dismissed along with all connected MPs. Interim direction, if

any, shall stand vacated.