Masrat Begum vs Abdul Rashid Khan and Another

Ali Mohammad Magrey, J.—This petition u/s 561-A Cr.P.C. has been filed by the petitioner seeking quashing of order dated 28.07.2010

passed by the learned Principal Sessions Judge, Kupwara, in Criminal Revision, File no. 30/Revision, arising out of the order dated 16.12.2009

passed by the learned Chief Judicial Magistrate, 1st Class, Handwara, granting interim maintenance of Rs. 1,000.00 each in favour of the petitioner

herein and respondent no. 2. The revision petition had been filed by the respondent herein on the ground that he had divorced his wife, petitioner

herein, by a written document prior to the date of the filing of the petition for maintenance before the learned Magistrate and, therefore, the

petitioner was not entitled to any maintenance from him. The marriage between petitioner and respondent no. 1 had taken place somewhere in

November, 2000. Out of the wedlock, a male child, namely, Saqleen Rashid, Proforma respondent no. 2 herein, was born.

On 04.08.2009, the petitioner filed an application u/s 488 of the Code of Criminal Procedure in the Court of Chief Judicial Magistrate,

Handwara, against respondent no. 1 seeking maintenance for her and the minor child. In the said application, the petitioner, inter alia, stated that

she is the legally wedded wife of respondent no. 1 herein and that for the last one year respondent no. 1 had deserted and neglected her and the

minor child, and had refused to maintain them. She alongwith the minor son was living at her parental home. Alongwith the aforesaid petition, the

petitioner also filed an application for grant of interim maintenance.

On being summoned, respondent no. 1 herein appeared before the learned trial Magistrate and resisted the petition on the ground that he had

divorced the petitioner by virtue of a deed of divorce executed by him on 30.7.2009 and that a copy thereof was posted by him to the petitioner

receipt whereof is available with him. The respondent in his objections further stated that the relationship as husband and wife between him and the

petitioner had ceased and that the petitioner was not entitled to any maintenance from him. In support of his aforesaid statement, respondent no. 1

also attached a photocopy of the divorce deed with his objections. The reasons which compelled him to divorce his wife are mentioned in the

objections as well as in the divorce deed. It is stated that the petitioners behaviour, right from the inception of the marriage, with him and his family

was quarrelsome and that the petitioner would leave his (respondent s) house without informing him. The matter relating to her such conduct and

behaviour was brought to the notice of the relatives of the petitioner as well. Besides, the matter was also referred to the Baradari and many

meetings were conducted, but the petitioner did not mend her ways.

The learned trial Magistrate, vide order dated 16.12.2009, relying on the decision of the Supreme Court in Shamim Ara Vs. State of U.P. and

Another, and observing, inter alia, that respondent has yet to prove the factum of divorce and communication thereof by leading evidence, and that

mere plea taken in the written objections would not suffice, allowed the application for grant of interim maintenance allowance and ordered the

respondent to pay Rs. 1,000.00 each to the petitioner and the minor child by 10th of every month. The order of interim allowance was ordered to

operate from the date of the application. The relevant portion of the order passed by the learned Magistrate is quoted hereunder:

The only argument advanced by ld. Counsel for the respondent is that petitioner no. 1 has been divorced by the respondent prior to the institution

of the application, so she is not entitled to maintenance, is not sustainable at this interim stage. Objections admittedly have been filed on 3.12.2009,

whereas application was instituted on 4.8.2009 and photocopy of divorce/talak placed on record is subject to strict proof and is also subject to

proof whether the petitioner was communicated the Talak and whether the Talak is in consonance of the law. All these facts can be established

during trial and petitioner cannot be disentitled at this interim stage of her right to seek maintenance. The laws cited by ld. Counsel for the

respondent in Showkat Ahmad Lone v/s. Mumtaza decided by Hon'ble High Court in criminal Revision No. 25/2008 on 24.4.2009 does not

come to the rescue of the respondent at this stage because the factum of divorce dated 30.7.2009 and communication thereof is yet to be proved

and so the ratio of the judgment is not applicable at this stage. Respondent has yet to prove the factum of divorce and communication thereof by

leading evidence and merely by taking plea in the written objection does not suffice It is also not in dispute that once a divorce and communication

thereof is proved by leading evidence and petitioner gains knowledge accordingly the marriage stands dissolved. So, the relationship of wife and

husband stands snapped. Wife is not under Mohammadan Law entitled to maintenance but as discussed above divorce by the respondent and

communication thereof to the petitioner is yet to be proved, so petitioner is entitled to maintenance at this interim stage.

The aforesaid order dated 16.12.2009 passed by the learned Chief Judicial Magistrate, Handwara, was called in question by respondent no. 1

herein before the learned Principal Sessions Judge, Kupwara, in Criminal Revision no. 30/Revision. The learned Principal Sessions Judge,

Kupwara, vide order dated 28.07.2010, set aside the order dated 16.12.2009 so far as it pertained to grant of interim maintenance in favour of

the petitioner herein with direction to the learned Magistrate to pass fresh orders in accordance with law regarding the claim of maintenance by the

petitioner herein. The learned Principal Sessions Judge in its detailed order has, inter alia, recorded as under:

Reverting back to the instant case, it is manifest that trial Magistrate has not asked the parties to lead any evidence prima facie to have satisfaction

regarding continuance of relationship of husband and wife between the petitioner and respondent no. 1. It is being conceded that there is dispute as

to continuance of matrimonial relationship between the petitioner and respondent no. 1 and for the purposes of grant of maintenance he has

presumed the relationship being intact between the petitioner and respondent no. 1. It is acknowledged principle in grant of provisional relief that

the right of which the enforcement is sought in the main proceedings should not be under serious doubt. The court is generally hesitant in granting

provisional relief in favour of the party where the right of which the enforcement is sought is under a serious doubt. It would be in fair play to ask

both the parities to produce some evidence of summary nature to have a provisional conclusion for grant of interim assistance. In Chandras case,

1998 KLJ 719, the Hon'ble High Court emphasized that in order to sustain the grant of interim maintenance some prima facie material is to be

considered and looked into by the trial Magistrate. The trial court was directed to call upon the parties to file the affidavits in support of their

respective claims and decide the case according to law.

The learned Principal Sessions Judge has thus expressed the opinion that the matter of grant of interim maintenance in favour of the petitioner

requires fresh examination by the learned trial Magistrate and has directed the trial Magistrate to pass fresh orders in accordance with law

regarding the claim for interim maintenance after affording an opportunity to the parties to produce evidence of summary nature for passing the

provisional remedy. The order dated 16.12.2009 that had been passed by the learned Judicial Magistrate has been thus set aside. It is this order

dated 28.07.2010, passed by the learned Principal Sessions Judge, Kupwara, which is under challenge in this petition filed u/s 561-A Cr.P.C.

Respondent no. 1 has not chosen to appear and contest this petition. I have heard learned counsel for the petitioner and considered the matter.

The main grounds taken by the petitioner in the instant petition are that respondent no. 1 had not produced any material to substantiate that the

petitioner was divorced in accordance with the mandate of Shariat; that the Revisional Court has ignored the law laid down by the Apex Court and

this Court on the issue; and that the impugned order has caused great failure of justice to the petitioner. Learned counsel for the petitioner in

support of his arguments has cited and relied upon the judgments of the Court in Manzoor Ahmad Khan Vs. Mst. Saja and Others, ; Safina Bi v.

Parvez Ahmad, 2010 (II) SLJ 525; and Mohammad Naseem Bhat v. Bilquees Akhter, 2012 (4) JKJ 318.

It may at the outset be mentioned that Section 488 Cr.P.C. does not contain an express provision authorizing a Magistrate to make an interim

order directing payment of interim maintenance pending disposal of an application for maintenance. The question relating to grant of interim

maintenance came up for consideration before the Supreme Court in Savitri Rawat Vs. Govind Singh Rawat, While interpreting the jurisdiction of a

Magistrate under the provision of Section 125 of the Central Code of Criminal Procedure, which is pari materia to Section 488 of the Code of

Criminal Procedure applicable in the State, the Supreme Court in paragraphs 5 and 6 of the judgment observed and held as under:

The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter

asking a person to pay maintenance to his wife, child or parent, as the case may be, the magistrate is not imposing any punishment on such person

for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance,

subject to a decree, if any, which may be made in a civil court in a given case, provided the Personal Law applicable to the person concerned

authorizes the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against

starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian

social life. In Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, this Court has explained the object of Sections 488, 489 and 490 of the

Code of Criminal Procedure 1898 which are replaced by provisions of Chapter IX of the Code thus: (SCC p. 390, para 11)

Sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption Of

the maintenance of wives and children. This chapter, in the words of Sir James Fitzstephen, provides a mode of preventing vagrancy, or at least for

preventing its consequences. These provisions are intended to fulfill a social purpose. Their object is to compel a man to perform the moral

obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the

neglected wife and children are not left beggared and destitute on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and

crime for their subsistence. Thus, Section 488 is not intended to provide for a full and final determination of the status and personal rights of the

parties. The jurisdiction conferred by the section on the magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is

certainly not punitive. As pointed out in Thompson case (6 NWP 205): the scope of the Chapter XXXVI is limited and the magistrate cannot,

except as thereunder provided, usurp the jurisdiction in matrimonial dispute possessed by the civil courts. Sub-section (2) of Section 489 expressly

makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil court between the parties

regarding their status and civil rights.

In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction

placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the

provisions in Chapter IX as conferring an implied power on the magistrate to direct the person against whom an application is made u/s 125 of the

Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that

applications made u/s 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings u/s

125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for

payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are

necessary to make its orders effective. This principle is embodied in the maxim ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non

potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). (Vide Earl Jowitt s Dictionary of

English Law, 1959 Edn., p. 1797.] Whenever anything is required to be done by law and it is found impossible to do that thing unless something

not authorized in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may

not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to

result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension

that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay

maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person

against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate may, however, insist upon an affidavit

being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there

is a prima facie case for making such an order. Such an order may also be made in an appropriate cases ex parte pending service of notice of the

application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass

such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding

payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the

application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable.

Having regard to the nature of the jurisdiction exercised by a magistrate u/s 125 of the Code, we feel that the said provision should be interpreted

as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to

pay a reasonable sum by way of interim maintenance subject to the other conditions referred to therein pending final disposal of the application. In

taking this view, we have also taken note of the provisions of Section 7(2)(a) of the Family Courts Act, 1984 (Act 66 of 1984) passed recently by

Parliament proposing to transfer the jurisdiction exercisable by magistrates u/s 125 of the Code to the Family Courts constituted under the said

Act.

(Highlighting supplied)

It is thus based on the aforesaid interpretation and construction of the relevant provision of the Code of Criminal Procedure that grant of interim

maintenance has been made permissible. However, the judgment makes it abundantly clear that such interim maintenance allowance can be granted

provided the Personal Law applicable to the person concerned authorizes the enforcement of any such right to maintenance.

In Jammu and Kashmir, the State Legislature has enacted the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007 (Act

no. IV of 2007) (for short the Shariat Act). Section 2 of the Act reads as under:

Application of Personal Law to Muslims Notwithstanding any customs or usages to the contrary, in all questions regarding intestate succession,

special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law,

marriage, dissolution of marriage, including talaq, ila, zihar, lain, khula and mubaraat, dower, guardianship, gifts, trusts and trust properties, the rule

or decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

A somewhat similar provision was also contained in Section 4(d) of the Shri Partap Jammu and Kashmir Laws Consolidation Act, Samvat 1977

(1920 AD), which stands repealed by Section 3 of the Shariat Act in so far as inconsistent with the provisions of the Shariat Act. It is clear from

the aforesaid provision of the Shariat Act that in all questions regarding marriage, dissolution of marriage, including talaq etc., the rule of decision in

cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

The question of grant of interim maintenance, as laid down in Savitri v. Govind Singh Rawat (supra), would arise only if the Personal Law

applicable to the parties authorizes the enforcement of any such right to maintenance. It is a matter of common knowledge that under Muslim

Personal Law a divorcee is entitled to maintenance and provisions during the period of iddat only and this maintenance is different from what is

provided u/s 488 Cr.P.C., inasmuch as the grant of maintenance under the said Section is hedged in certain limitations. It is settled that for seeking

maintenance and provisions during the period of Iddat, a divorcee would have to file a regular civil suit. Even where a Magistrate grants

maintenance u/s 488 Cr.P.C., the wife and/or children would not be precluded from claiming higher rate of maintenance in a regular civil suit.

It may be observed here that Section 488 Cr.P.C. essentially provides for grant of maintenance to wife, children and parents upon proof of

neglect or refusal to maintain. The provision states that If any person having sufficient means neglects or refuses to maintain his wife, unable to

maintain herself. The first condition that the provision of law prescribes is that there must be a relationship of husband and wife subsisting. The

question of interim maintenance would arise only if the marriage is proved to be subsisting in accordance with the Shariah. In the instant case, as

mentioned above, respondent no. 1 has taken the plea that he has divorced the petitioner prior to the filing of the application for maintenance and,

therefore, the relationship, on the basis of which the petitioner claims the maintenance, does not exist. In a proceeding u/s 488 Cr.P.C., when a

woman comes to the court claiming maintenance on the plea of neglect or refusal on the part of her husband and the husband pleads a prior

divorce, strictly speaking, the validity or otherwise of the divorce pleaded does not become the subject matter of the proceedings. Validity or

otherwise of the divorce can be determined only in a regular civil suit; not in a summary proceeding u/s 488 Cr.P.C., where the factum of divorce,

if pleaded, is to be substantiated by evidence of summary nature. In other words, determination of the question of grant or otherwise of

maintenance would depend upon the determination of existence of the relationship on the basis of which it is claimed and when the relationship is

pleaded to have ceased, the claim would hinge on substantiation of the plea of divorce.

The learned counsel for the petitioner has strenuously placed reliance on the judgment in Mohammad Naseem Bhat v. Bilquees Akhter (supra)

to plead that unless the ingredients mentioned in the said judgment are proved by the respondent no. 1 at the trial, the relationship between the

petitioner and respondent no. 1 as husband and wife would be deemed to be subsisting and, consequently, the petitioner would be entitled to

interim maintenance till such time the divorce is proved.

Before referring to the ingredients deduced by the learned Judge from interpretation of the Quranic verses and precepts of the Prophet

(SAW), mentioned in paragraph 26 of the judgment in Mohammad Naseem Bhat v. Bilquees Akhter (supra), I deem it necessary to mention here

that Muslim Personal Law is not in the form of any legislative enactment. The State Legislature has not enacted any law concerning any of the

subjects enumerated in Section 2 of the Shariat Act except J&K Muslim Marriage Registration Act of 1981 which, though in the Statute book, is

inoperative because of non-issuance of notification in the Government Gazette by the Government. The Act also does not define Muslim Personal

Law. Section 2 of the Act starts with a non obstante clause, notwithstanding any customs or usages to the contrary, meaning thereby that, while

applying Muslim Personal Law in relation to the matters enumerated in the provision of the Act, any custom or usage contrary to the Muslim

Personal Law is to be precluded. In other words, the law so made by the State Legislature provides that Shariah in its purest form is to be applied.

Section 2 of the Shariat Act speaks of application of Personal Law to Muslims, not legislating Shariah or expounding it. It is otherwise also not

within the domain of the Courts to legislate on any subject, much less Shariah.

Shariah is what has been ordained in the Quran and Sunna, i.e., the practices and precedents/precepts of the Prophet (SAW), as expounded

by Ijmaa, Qiyas and Ijtihad by the great scholars of Islam who have been well versed with the knowledge of the religion. The jurisprudence thus

developed is popularly known as Fiqh. It needs to be mentioned here that there are two broad divisions in Muslim community, namely, Sunnis and

Shias. Sunnis are further divided into four sub-sects, namely, Hanafi, Shafei, Maliki and Hanbali. Whereas Shias follow a different fiqh/School, the

Sunni sub-sects are adherents of their own respective Schools, named after the great Islamic Scholars, namely, Abu Hanifa, Muhammad Ibn Idris

Ash-Shafei, Malik Ibn Anas and Ahmed Ibn Hanbal popularly known as Hanafi, Shafei, Maliki and Hanbali Schools. And there is a great

divergence amongst the various Schools regarding the exercise of the power of divorce by the husband, each recognizing one or the other form of

divorce as effective and valid. It is not that one straitjacket formula of divorce is recognized and adopted by these sects and sub-sects of Muslims.

The different forms of divorce as recognized by the Muslims are mentioned under Chapter XIII, Dissolution of the marriage contract Pre-

Islamic institutions Talak Difference among the Schools, of Ameer Ali s Commentaries on Mahomedan Law (Fifth Edition) at pp 1552 to 1557. I

deem it appropriate to extract not only the different forms of divorce, but also the comments of the author and what he has reported about the

reforms brought about by the Prophet (SAW) in the power of divorce among the nations of antiquity:

The reforms of Mohammed. The reforms of Mohammad marked a new departure in the history of Eastern legislation. He restrained the power of

divorce possessed by the husbands; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his

life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a Judge. He pronounced talak to be the

most detestable before God of all permitted things (reported by Abu Daud: comp. Radd-ul-Muhtar. Vol. II, p. 682), for it prevented conjugal

happiness and interfered with the proper bringing up of children. The permission, therefore, in the Koran, though it gave a certain countenance to

the old customs, has to be read with the light of the Lawgivers own words. When it is borne in mind how intimately law and religion are connected

in the Islamic system, it will be easy to understand the bearing of the words on the institution of divorce.

Naturally, therefore, great divergence exists among the various schools regarding the exercise of the power of divorce by the husband of his own

motion and without the intervention of the Judge. A large and influential body of jurists regard talak emanating from the husband as really prohibited

except for necessity, such as the adultery of the wife (Com. Radd-ul-Muhtar, Vol. II, p.682). Another section, consisting chiefly of the Matazalas,

consider talak as not permissible without the sanction of the Hakim-ush-shaaraa, viz., the Judge administering the Mussulman Law.

They consider that any such cause as may justify separation and remove talak from the category of being forbidden should be tested by an

unbiased Judge; and, in support of their doctrine, they refer to the words of the Prophet already cited, and his direction that in case of dispute

between the married parties, arbiters should be appointed for the settlement of their differences.

Hanafi, Shafei, Maliki and Shiah doctrines. The Hanafis, the Malikis, the Shafeis and the bulk of the Shiahs hold talak to be permitted, though they

regard the exercise of the power without any cause to be morally or religiously abominable.

The Radd-ul-Muhtar, after stating the arguments against the proposition that talak is unlawful, proceeds to say: No doubt, it is forbidden, but it

becomes mubah for certain outside reason, and this is the meaning of those jurists who hold that it is really forbidden (Kamal-ud-Din ibn Himam is

one of the jurists who holds it forbidden, but allowed only in cases of necessity). And its being mubah arises from the necessity of release (from the

marital tie) in certain cases. Therefore, when there is no reason whatsoever, there is no necessity for release; and if talak is given without any

reason, that is stupidity and ingratitude to God, and the giving of unnecessary and gratuitous trouble to the woman and her family and the children..

If there is no legal cause for talak, such as would render it mubah, then it must be considered unlawful; for God says (in the Koran) that if your

women are obedient to you, you must not seek separation from them (Radd-ul-Muhtar, Vol. II pp 682, 683).

The author of the Multeka (Ibrahim Halebi) is more concise. He says: The law gives to the man primarily the faculty of dissolving the marriage, if

the wife by her indocility or her bad character renders the married life unhappy; but in the absence of serious reasons, no Mussulman can justify a

divorce either in the eyes of religion or the law. If he abandons his wife or puts her away from simple caprice, he draws upon himself the divine

anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously.

Talak when permitted and when obligatory. Talak is permitted only when the wife by her conduct or her words does injury to the husband or

happens to be impious And it is wajib (obligatory) when the husband cannot fulfill his duties, as when he is impotent or an eunuch (Radd-ul-

Muhtar, Vol. II, p. 683).

Kinds of talak. Talak may be by spoken words (oral) or by a written document (talaknama). It is not necessary for the wife to be present when the

talak is pronounced.

Hanafi doctrines. Two kinds of talak are recognized by the Hanafis, viz., (1) the talak-us-sunnat, and (2) the talak-ul-biddat or talak-ul-badai. The

talak-us-sunnat is the divorce which is effected in accordance with the rules laid down in the traditions (the sunnat) handed down from the Prophet

or his principle disciples. It is, in fact, the mode or procedure which seems to have been approved of by him at the beginning of his ministry, and is,

consequently, regarded as the regular or proper and orthodox form of divorce.

Talak-ul-biddat. The talak-ul-bidaat, as its name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century

of the Mohammedan era

As a matter of fact, the capricious and irregular exercise of the power of divorce which was in the beginning left to the husbands was strongly

disapproved of by the Prophet. It is reported that when once news was brought to him that one of his disciples had divorced his wife, pronouncing

the three talaks at one and the same time, the Prophet stood up in anger on his carpet and declared that the man was making a plaything of the

words of God, and made him take back his wife (Radd-ul-Muhtar, Vol. II, p. 684).

The Shiahs and the Malikis do not recognize the validity of the talak-ul-bidaat, whilst the Hanafis and the Shafeis agree in holding that a divorce is

effective, if pronounced in the bidaat form, though in its commission the man incurs a sin.

Talak-us-Sunnat; the Ahsan form. The talak-us-Sunnat is either ahsan or hassan very proper or simply proper. In the talak-us-sunnat pronounced

in the Ahsan form, the husband is required to submit to the following conditions, viz.: (a) he must pronounce the formula of divorce once in a single

sentence; (b) he must do so when the woman is in a state of purity (tahir), and there is no bar to connubial intercourse, nor has there been any

during that state; and (c) he must abstain from the exercise of conjugal rights after pronouncing the formula, for the space of three tahirs. This later

clause is intended to demonstrate that the resolve, on the husbands part, to separate from the wife, is not a passing whim, but is the result of a

settled determination. On the lapse of the term of three tahirs, the separation takes effect as an irrevocable divorce.

It is proper and right to observe this form, says the Radd-ul-Muhtar, for human nature (nafs) is apt to be misled and to lead astray the mind and to

perceive faults which may not exist, and to commit mistakes of which one is certain to feel ashamed afterwards.

Hassan form. In the hasan form, the husband is required to pronounce the formula three times during three successive tahirs, namely, three periods

of purity of the wife. When the last formula is pronounced, the talak or divorce becomes irrevocable. These two forms alone, as stated before, are

recognized by the Shiashs.

Talak-ul-bidaat. In the talak-ul-bidaat, the husband may pronounce the three formulae at one time, whether the wife is in a state of tahir or not. The

separation then takes effect definitely after the woman has fulfilled her iddat or period of probation.

All these schools allow revocation; (In Ahsan and Hassan form) that is, a husband who has suddenly and under inexplicable circumstances

pronounced the formula against his wife, he may revoke any time before the three tahirs have expired. When the power of recantation is lost, the

separation or talak becomes bain, whilst it continues, the talak is simply rajai or revocable.

Talak-ul-bain. when a definite and complete separation (talak-ul-bain) has taken place, the parties so separate cannot remarry without the

formality of the woman marrying another man and being divorced from him...

Difference between the Sunni and Shiah rules. As a general rule, the power of talak under the Sunni doctrines is larger than that under the Shiah

Law. Marriage, says the Sharaya, in its essence is an act of chastity established by the law, (per se) not admitting of dissolution; in order therefore

to remove the tie, it is necessary to adhere strictly to the formula (sigheh) prescribed for the purpose.

The conditions which surround the power to talak under the Shia Law and limit its exercise, are accordingly stricter and far more rigid than under

the Sunni Law.

Similarly, the different modes of talaq, as mentioned in Mulla s Principles of Mahomedan Law, (19th Edn. by Mr. M. Hidayatullah, 1990,

Eleventh Reprint, 2001, pp. 261 262), are as follows:

(1) Talak Ahsan. This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence

from sexual intercourse.

(2) Talak hasan. This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs.

The first pronouncement should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr.

(3) Talak-ul-bidaat or talak-i-badai. This consists of:

(i) three pronouncements made during a single tuhr either in one sentence, e.g., I divorce thee thrice,-or in separate sentences, e.g., I divorce thee,

I divorce thee, I divorce thee; or

(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g., I divorce thee irrevocably.

Talak-us-Sunnat and Talak-ul-bidaat. The Hanafis recognize two kinds of talak, namely, (1) talak-us-Sunnat, that is, talak according to the rules

laid down in the Sunnat (traditions of the Prophet; and (2) talak-ul-bidaat, that is, new or irregular talak. Talak-ul-bidaat was introduced by the

Omeyyade monarchs in the second century of the Mahomedan era. Talak-ul-Sunnat is of two kinds, namely, (1) ahsan, that is, most proper, and

(2) hasan, that is, proper. The talak-ul-bidaat or heretical divorce is good in law, though bad in theology, and it is the most common and prevalent

mode of divorce in this country. In the case of talak ahsan and talak hassan the husband has an opportunity of reconsidering his decision, for the

talak in both these cases does not become absolute until a certain period has elapsed and the husband has the option to revoke it before then. But

the talak-ul-bidaat becomes irrevocable immediately it is pronounced. The essential feature of a talak-ul-bidaat is its irrevocability. One of the tests

of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-

ul-bidaat, and the intention to render a talak irrevocable may be expressed even by a single declaration. Thus, if a man says I have divorced you by

a talak-ul-bain (irrevocable divorce), the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may

be pronounced but once. Here the use of the expression bain (irrevocable) manifests of itself the intention to effect an irrevocable divorce.

A talak in the ahsan mode becomes irrevocable and complete on the expiration of the period of iddat;

A talak in the hasan mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat;

A talak in the badai mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the talak becomes irrevocable at once, it

is called talak-i-bain, that is, irrevocable talak.

Until a talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or impliedly as by resuming sexual

intercourse.

Reference may also be made in this regard to what is stated in Hedaya, Commentary on Islamic Laws by Shyakh Burhanuddin Abu Bakr-al-

Marghinani, translated by Charles Hamilton, pp. 72-73:

Distinctions of divorce. Divorce is of three kinds: first, the Ahsan, or most Laudable; second, the Hoosn, or laudable (which are the distinctions of

the Talak-al-Sonna; and third, the Biddat, or irregular.

Talak Ahsan. The Talak Ahsan, or most laudable divorce, is where the husband repudiates his wife by a single sentence, within a Tohr (or term of

purity, meaning the space which intervenes between the menstrual fluxes), during which he has not had carnal connexion with her, and then leaves

her to the observance of her Edit (Iddat), or prescribed term of probation. This mode of divorce is termed the most laudable, for two reasons: first,

because the companions of the Prophet chiefly esteemed those who gave no more than one divorce until the expiration of the Edit (Iddat), as

holding this to be a more excellent method than that of giving three divorces, by repeating the sentence on each of the two succeeding Tohrs;

secondly, because in pursuing this method the husband leaves it still in his power, without any shame, to recover his wife, if he is so inclined, by a

reversal of the divorce during her Edit: this method is, moreover, the least injurious to the woman, as she thus remains a lawful subject of marriage

to her husband even after the expiration of her Edit (Iddat) [Contrary to any other mode of divorce, as a wife repudiated in any other way cannot

be again married to her first husband, unless she be previously married to, and divorced by, another man], which leaves a latitude in her favour

unreprobated

Talak Hoosn. The Talak Hoosn or laudable divorce, is where a husband repudiates an enjoyed wife by three sentences of divorce, in three Tohrs.

Imam Malik asserts that this method classes with the Biddat, or irregular, and that no more than one divorce is admitted as unexceptionable,

because, as being in itself a dangerous and disapproved procedure, it is only the urgency of release from an unsuitable woman that can give a

sanction to divorce; and this urgency is fully answered by a single Tohr. The Arguments of our doctors on this topic are two-fold: first, a precept of

the Prophet delivered to Ebn Amir, ""One thing required by the SONNA is that ye wait for the TOHR and pronounce a divorce in each Tohar;

Secondly, the propriety of a divorce rests merely upon the establishment of the actual urgency itself; that being a matter concealed and

unascertained [but by virtual proof.] and the act of proceeding to divorce at a time when the desire of coition with the woman is fresh renewed (to

wit, at the recommencement of her Tohr), is a proof of the urgency; opposition to Talak Biddat, which signifies a novel, unauthorized or heterodox

mode of divorce: the terms regular and irregular are here adopted as being the most familiar and the repetition of divorce at the two subsequent

returns of the Tohr amounts to no more than a repetition of the proof, and is therefore allowed of. Some of the learned have said that, in this

species of divorce, it is most advisable that the husband delay pronouncing the first sentence of it until towards the termination of the Tohr, so as

that the Edit may not be too much protracted.' but it is evident that the husband should rather pronounce the divorce at the commencement of the

Tohr, because, if he were to delay it, he might be tempted to have carnal connexion with the woman in the interim, under an intention of divorcing

her, and then divorce her after such carnal connexion, which is forbidden.

Talak Biddat. The Talak Biddat, or irregular divorce, is where a husband repudiates his wife by three divorces at once, (that is, included in one

sentence), or where he repeats the sentence separately, thrice within one Tohr; and if a husband gives three divorces in either of those ways, the

three hold good but yet the divorcer is an offender against the law.

Shafei has said that all these three descriptions of divorce are equally unexceptionable and legal, because divorce is in itself a lawful act, whence it

is that certain laws have been instituted respecting it; and this legality prevents any idea of danger being annexed to it; moreover, divorce is not

prohibited, even during the woman's courses, the prohibition there applying to the protraction of the Edit (Iddat), and not to divorce. Our doctors,

on the other hand, say that divorce is in itself a dangerous and disapproved procedure, as it dissolves marriage, an institution which involves many

circumstances as well of a temporal as of a spiritual nature; nor is its propriety at all admitted, but on the ground of urgency of release from an

unsuitable wife; and there is no occasion, in order to procure this release, to give three divorces at once, whereas there is an excuse for giving three

divorces separately in three Tohrs, as this exhibits repeated proofs of the urgency of it; and with respect to what Shafei advances, that ""the legality

of divorce prevents any idea of danger being annexed to it,"" we answer that the legality of divorce, in one respect (that is to say, inasmuch as it is a

destroyer of subjection), does not admit the idea of its being dangerous, but that, in another respect (to wit, its occasioning the dissolution of

marriage, which involves concerns both of a spiritual and temporal nature), it must be considered as attended with danger.

The pronouncing for two divorces within one Tohr comes under the description of Biddat, or irregular, the same as that of three divorces, as

already intimated.

A question has arisen among the learned, whether the pronouncing of a single divorce irreversible within one Tohr be of the description of Biddat

or not? Mohammed (jurist), in the Mabsoot, has said, whoever gives an irreversible divorce, although it be within the Tohr, forsakes the Sonna, as

there is no urgent necessity for such a sentence to effect release from the wife, since by the lapse of the Edit (Iddat) that end is obtained;"" but again,

in the Zeeadat, he says that this method is not to be reprobated, on account of the occasional urgency of immediate release, which by an

irreversible divorce is obtained, it not being then suspended upon the lapse of the Edit (Iddat).

Points to be attended to in adhering to the Sonna divorce. Sonna [that is, attention to the mode prescribed by the Soona (Sunnah)] in divorce

appears in two shapes, adherence to number, and to time; to the former, by restricting the sentence to that of a single divorce reversible, in which

the enjoyed and the unenjoyed wife are the same; and to the latter (in which the enjoyed wife is solely considered), by pronouncing the divorce in a

Tohr during which the husband has not had carnal connexion with her, because it is the proof of urgency that is regarded; and the act of proceeding

to a divorce at a time when the desire of coition with the woman is fresh renewed (as at the recommencement of her Tohr), is the best proof of

such urgency, for during the actual time of the courses the woman is not an object of desire

The above quoted passages from Ameer Ali s commentary on Mahomedan Law compiled from authorities in the original Arabic; Mulla s

Principles of Mahomedan Law, by M. Hidayatullah; and Hedaya, Commentary on Islamic Laws by Shyakh Burhanuddin Abu Bakr-al-

Marghinani, translated by Charles Hamilton are self explanatory and do not require any deductions to be made for the purposes of this judgment.

Now, coming to the judgments, cited and relied upon by the learned counsel for the petitioner, in Mohammad Naseem Bhat v. Bilquees

Akhter (supra), the judgment, interpreting some of the relevant verses of the Quran and the precepts of the Prophet, in paragraphs 26 and 27 lays

down as under:

From the above discussion, it emerges that a husband to wriggle out of his obligations under marriage including one to maintain his wife,

claiming to have divorced her has not merely to prove that he has pronounced Talak or executed divorce deed to divorce his wife but has to

compulsorily plead and prove:

(i) that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that

such effort for reasons not attributable to the husband did not bear any fruit.

(ii) That he had a valid reason and genuine cause to pronounce divorce on his wife.

(iii) That Talak was pronounced in presence of two witnesses endued with justice.

(iv) That Talak was pronounced during the period of tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee

during said tuhr.

It is only after the husband pleads and proves all the above ingredients that divorce Talak, would operate and marriage between the parties

would stand dissolved so as to enable husband to escape obligations under the marriage contract, including one to maintain his wife. The Court in

all such cases would give a hard look to the case projected by the husband and insist on strict poof.

It needs to be observed here that the Shariat Act prescribes that in all questions regarding the subjects mentioned in Section 2 thereof, which

include marriage and dissolution of marriage, the rule or decision in cases where the parties are Muslims shall be the Muslim Personal Law

(Shariat). Sharia, as mentioned earlier in this judgment, is what is ordained in the Quranic verses and Sunna, i.e., practices and sayings of the

Prophet, as expounded and supplemented by the highly knowledgeable Islamic Scholars by Ijma, Qiyas and Ijtihaad. The aforesaid judgment does

not say anywhere that the deductions made therein, as contained in paragraphs 26 and 27 thereof, on interpretation of the verses of Quran and the

precepts of the Prophet, is the Shariah or the Ijma, Qiyas or Ijtihaad on the subject. It is settled law that it is not within the competence of the

Court to interpret the Quranic verses or the precepts of the Prophet without knowing the context in which they were made. It falls within the

domain of the Scholars (Muhadisine and Muffasirine), who have full knowledge of the religion and, therefore, are experts in the field, to interpret

the Quranic verses and/or the Precepts of the Prophet. It may be mentioned here that plain reading of the translations of the Quranic verses for one

s personal understanding is one thing and having the Quranic knowledge together with Sunnah, as it stands expounded, for laying the rules of

Sharia is another thing. The Muhadisine and Muffasirine are recognised as experts in the subject having not only the knowledge of the background

in which the Quanic verses had been revealed but also the context of the precepts of the Prophet. It is otherwise well settled judicial principle that

the job of the Experts should be left to them and that the Courts should not substitute their own opinion for that of the Experts on a subject. As

said above, it is not permissible for the Courts to interpret the Quranic verses. Reference in this connection may be made to the Division Bench

decision of this Court in Amad Giri Vs. Mst. Begha, Speaking for the Bench comprising Hon'ble Mr. Justice J.N. Wazir, C.J., and Shahmiri J,

Shahmiri J in paragraph 3 of the judgment laid down as under:

Before examining the question under reference on its merits, I feel no hesitation in recording my strong disapproval of the manner in which the

Tehsildar Magistrate has written his judgment. However learned the Tehsildar Magistrate may be in theology, he should have known that he was

acting as Judicial Officer, and it was not for him as such Officer to give his own interpretations of the verses of the holy Quran. Times without

number the highest Judicial Courts in India including the Privy Council have sounded a note of warning against entertaining new and novel

interpretations of the texts of the Quran and Hadis by persons who are not recognized as competent to give such interpretations. So far as these

are concerned, we have to rely on the interpretation of only such commentators of yore (Muffasirs and Muhaddises) whose authority is

acknowledged throughout the Muslim world.

Again, the Full Bench of the Allahabad High Court, in Mohd. Ismail Vs. Abdul Rashid and Others, has held, where a rule of Mahomedan Law

is well-settled in the view of the ancient expositors of the Mohammedan Law, it is not open to us to disregard or reject it on the ground that to us it

appears to be illogical or unsound, provided, of course, it is not contrary to equity, justice, and good conscience on which ground alone, as

observed by the Supreme Court, the right is enforced at the present day.

Going by the rules of judicial discipline, even in face of the aforesaid Division Bench judgment of this Court and the Full Bench judgment of

Allahabad High Court, decision of one Coordinate Bench of this Court, as long as it is not reversed or set aside, has of course a persuasive force

in case the fact pattern in a subsequent case matches with the fact pattern of the case on which the judgment is based. However, in applying the

ratio of Mohammad Naseem Bhat v. Bilquees Akhter (supra) to the instant case, there is a difficulty: inasmuch as the judgment does not say, much

less expressly, that what is deduced therein is the Shariah or that it constitutes, or is based upon, the Ijma, Qiyas or Ijtihaad, and, in view of the

express provision of the Shariat Act contemplating application of Shariat, it would not be safe to follow, what is laid down in the judgment, as a

rule on Sharia. It may also be relevant to mention here that in paragraph 4 of the judgment in Amad Giri v. Mst. Begha (supra), the Division Bench

has further laid down as under:

[T]he Muslim Law, as administered by the Judicial Courts in India, is based not only on Holy Quran (the word of God), Sunna (the sayings and

doings of the Prophet) but also on Ijma-ul-Ummat, i.e., consensus of opinion of the companions and disciples of the Prophet and Qiyas; that is to

say, analogical deductions derived from a comparison of Quran, Sunna and Ijma by those capable of forming judgment in matters in relation to

which the above three sources do not offer a clear and direct guidance. Under this heading, in my humble view, would come the different rules of

Fiqa which have been elaborated by four great Jurists of Sunnis, namely Imam Abu Hanifa along with his two distinguished disciples, Imam

Muhammad and Abu Yusuf, Imam Shafei, Imam Hanbal and Imam Malik and the Imams and Mujtahids of Shias, Muatazilas and of other sects of

Islam.

Shariat thus is based on Holy Quran (the word of God), Sunna (the sayings and doings of the Prophet), the Ijma-ul-Ummat, i.e., consensus of

opinion of the companions and disciples of the Prophet and Qiyas; that is to say, analogical deductions derived from a comparison of Quran,

Sunna and Ijma by those capable of forming judgment in matters in relation to which the above three sources do not offer a clear and direct

guidance; collectively forming different rules of Fiqa which have been elaborated by four great Jurists of Sunnis, namely Imam Abu Hanifa along

with his two distinguished disciples, Imam Muhammad and Abu Yusuf; Imam Shafei; Imam Hanbal; and Imam Malik and the Imams and

Mujtahids of Shias, Muatazilas and of other sects of Islam.

The present case is otherwise distinguishable on facts. In the case of Mohammad Naseem Bhat v. Bilquees Akhter (supra), the facts narrated

in the judgment disclose that the husband in that case had for the first time in the Court itself taken the plea that he had divorced the applicant-wife

on a date prior to the filing of the application for maintenance u/s 488 Cr.P.C., without having produced any evidence or material in that regard. So

is the case in Manzoor Ahmad Khan v. Mst. Saja & ors., cited and relied upon by the learned counsel for the petitioner. It was in that context held

that such plea was taken only to wriggle out of the liability to maintain the wife. In the instant case, not only is it the case of the respondent that

prior to the divorce there have been number of Jirgas held amongst the Baradari, which yielded no fruitful result, but the respondent no. 1 has

supported his plea of prior divorce by the talaknama stated to have been duly executed by him in presence of witnesses. It is further his claim that

he despatched a copy thereof to the petitioner herein by post. Therefore, this is not a case where the petitioner has taken the plea of divorce for

the first time in his objections to the petition for maintenance. On facts, the aforesaid judgments cited by the learned counsel are, as such,

distinguishable and render no help to the petitioner.

The judgment in Safina Bi v. Parvez Ahmad (supra), cited and relied upon by the learned counsel for the petitioner concerns a totally different

subject, namely, the dispute regarding paternity of the child and is, therefore, not relevant in this case.

During the course of hearing of this case, reference was also made to the judgment of another Coordinate Bench of this Court in Amina Banoo

Vs. Ab. Majid Ganai, In that case, the petition u/s 488 Cr.P.C. had been dismissed by the learned Magistrate in hot haste without the divorce

having been proved, as held by the Court. The Court, relying on the judgment of the Supreme Court in Shamim Ara Vs. State of U.P. and

Another, (wrongly mentioned in the judgment as Syed Jamaluddin v. Valian Bee), allowed the petition u/s 561-A Cr.P.C. and directed the learned

trial Magistrate to decide the petition within three months.

It would be apt to also make a reference to the judgment of the Supreme Court in Shamima Ara v. State of U.P. (supra). In that case the High

Court had found that the divorce which was alleged to have been given by the respondent therein to the appellant was not given in the presence of

the appellant and it was not the case of the respondent that the same was communicated to her. The High Court had held, but the communication

would stand completed on 5.12.1990 with the filing of the written statement by the respondent No. 2 in the present case. Therefore, the High

Court had concluded that the appellant was entitled to claim maintenance from 1.1.1988 to 5.12.1990 (the later date being the one on which reply

to application u/s 125 Cr.P.C. was filed by the respondent no. 2 in the Court). In light of the aforesaid facts, the Supreme Court in paragraph 16

of the judgment held as under:

We are also of the opinion that the talaq to be effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to

utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq

having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the

wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a

divorce having been pronounced something in the past cannot by itself by treated as effecting talaq on the date of delivery of the copy of the

written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if

he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view

propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous

talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with

effect from the date of filing of the written statement.

A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of

filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988 filed in some

previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as

relevant and of any value.

The law laid down in the aforesaid judgment is clear that a plea in the written statement by itself cannot be taken as effecting divorce. Essentially,

therefore, the plea of a previous divorce has to be proved, especially so when it is not addressed to the wife.

Coming to the instant case, respondent no. 1 has taken the plea that he has divorced the petitioner by a written deed, talaknama, executed by

him on 30.07.2009 in presence of witnesses. The original of the talaknama has been placed on record. It bears the signatures of the respondent as

well as the scribe of the deed and two witnesses. It has been attested by Notary Public and bears the seal and signatures of the Notary Public.

Though executed prior to the date of filing of the application for maintenance by the petitioner, it cannot be said that the plea taken is simply to

wriggle out of the liability to maintain the petitioner. Of course, this talaknama is required to be proved for final determination of the question

whether or not the petitioner is entitled to the grant of maintenance in her favour. But for grant of interim maintenance there must be some material

to come to a prima facie finding that the marriage between the parties subsists. Therefore, the argument of the learned counsel that till the divorce is

proved the relationship between the petitioner and respondent no. 1 as husband and wife would be deemed to be subsisting and, consequently, the

petitioner would be entitled to interim maintenance till such time the divorce is proved is an argument not buttressed by the Personal Law governing

the parties.

The learned Principal Sessions Judge in the impugned order has recorded as under:

The provisional relief is granted by a court at the threshold, if a right is sought to be enforced against the opposite party and the court without

making any attempt to comment upon the merits of the case frames the opinion, that the person who seeks the assistance of the court is prima facie

entitled to have the enforcement of the right. Where the existence of the right is in serious doubt the courts are loath to extend the benefit of

provisional relief subject to the further outcome of the proceedings. It is settled that interim relief flows from the main relief and in no case interim

relief can be granted which may over reach the main relief which ultimately may or may not be granted. The condition precedent with regard to the

grant of maintenance in favour of the wife is the existence of conjugal relationship which is to be ascertained with reference to the personal law of

the parties. In this regard the observations of a three Judge Bench of Hon'ble Apex Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram

Adhav and Another, are relied. Similarly various High Courts have also observed that personal law of the parties cannot be altogether excluded

from the consideration, in examining the entitlement of a wife to the maintenance in proceedings U/S. 488 Cr.P.C.

In arriving at the conclusion quoted hereinabove in paragraph 6 of this judgment, the learned Sessions Judge has relied upon the judgments of the

Supreme Court in Bharat Petroleum Corporation Ltd. and Another Vs. N.R. Vairamani and Another, ; Punjab National Bank Vs. R.L. Vaid and

Others, ; and Parasa Raja Manikyala Rao and Another Vs. State of A.P., The relevant passages of these judgments, as relied upon and quoted by

the learned Principal Sessions Judge as under:

Bharat Petroleum Corporation Ltd. V.N.R. (supra) Courts should not place reliance on decision without discussing as to how the factual situation

fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclids theorems nor a

provision of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been

stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary

for judges to embark into lengthy discussion but the discussion is meant to explain and not to define.

Punjab National Bank v. R.L. Vaid (supra)

There is always peril in treating the words of a judgment as though they are words in legislative enactment and it is to be remembered that judicial

utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference

between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so

far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and

branches, said Lord Denning, while speaking in the matter of applying precedents.

Parasa Raja Mannkiyala v. State of A. P (supra)

There can be no empirical formula as to how one reacts in a given situation and its effect and impact. It would be almost like trying to put a square

peg on a round hole. To imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any

or every other case not withstanding dissimilarity in effect and the distinctive features is legally impermissible.

Having minutely gone through the impugned judgment, I find the same well reasoned and in accordance with law. As discussed hereinabove,

and to sum up the law on the point, the statutory provisions of Sections 488 to 490 Cr.P.C. do not contemplate the grant of interim maintenance,

and the same has been developed by law of precedence. The concept so developed is strictly restricted by two complementary rigours; first, the

rigour of the principles governing the grant of interim relief, and second the personal law, subject to which alone the interim maintenance can be

granted. Viewed thus, in order to justify the grant of interim maintenance, the applicant has to establish a prima facie case, that she is entitled to

maintenance u/s 488 Cr.P.C. In order to arrive at such a conclusion the Magistrate is required to have some semblance of material on record in the

shape of evidence. The learned Session Judge by the impugned order, as noticed above, has rightly directed the learned Magistrate to consider the

matter afresh on the basis of evidence of summary nature to be produced by the parties and pass fresh orders in accordance with law. Therefore,

the judgment of the Revisional Court, stating the correct position of law, does not warrant any interference under the inherent powers of this Court.

This petition is, accordingly, dismissed together with the connected Cr. MP. Interim order, if any subsisting, shall stand vacated.

Before parting with this judgment, it needs to be observed that the maintenance matter pertains to the year 2009, having been instituted on

4.8.2009 and it has now been pending for more than four years. The records of the trial court have been called for perusal and received in this

Court only a few days back, to be precise on 12.02.2014. A summary matter of this nature should not have been pending for so long a time. The

Chief Judicial Magistrate is directed to explore the possibility of deciding the matter within a period of two months from the date of this order.

Registry is directed to remit the revisional and the trial court records forthwith to the Courts concerned.