Mohammad Mudasir Mir vs Mst Zareefa And Others

Vinod Chatterji Koul, J

Petitioner seeks setting-aside and quashment of petition under Section 488 Cr. P.C. titled Mst Zareefa and others v. Mohd. Mudasir Mir, the Order dated 13th February 2014, passed by Chief Judicial Magistrate, Handwara (for short "Trial Court") as also the Order dated 4th September 2015, passed by Additional Sessions Judge, Handwara (for brevity "Revisional Court") on the grounds mentioned in instant petition preferred under Section 561-A of the Code of Criminal Procedure.

I have heard learned counsel for parties and considered the matter.

As is coming forth from perusal of the file as also record, a petition under Section 488 Cr.P.C. was filed by respondents herein before Trial Court. By order dated 13th February 2014, petitioner herein was directed to pay maintenance of Rs.4000/- to respondents. Against order dated 13th February 2014, petitioner herein preferred a Revision, which has been dismissed vide order dated 4th September 2015.

Learned counsel for petitioner has stated Petition under Section 488 Cr.P.C. was not maintainable as respondent no.1 was divorced by petitioner and this fact was established before Trial Court. According to him, Section 488 Cr.P.C. provides that a wife can maintain a claim only if she is neglected when she has no means to maintain herself and that in the present case respondent no.1 is able to maintain herself as she is owner of more than 10 Kanals of Orchard land. It is also contended that respondent no.1 has refused to live with petitioner. He avers that during pendency of proceedings, petitioner has remarried and is living with his second wife peacefully and out of said wedlock two more children have born.

It is discernible from the record that petition under Section 488 Cr.P.C. was filed by respondents before the Trial Court on 14th May 2010, whereas, divorce, according to own admission of petitioner, was pronounced and reduced in writing on 31st May 2011, that is, much after institution of petition under Section 488 Cr.P.C. This per se portrays that to wriggle out of responsibility of paying maintenance, divorce has been made use of by petitioner. Such a practice has been deprecated by the Supreme Court as well as by the High Courts.

Taking into account case set up by petitioner and submissions made by learned counsel for petitioner, it may be mentioned here that if a person, notwithstanding having sufficient means, neglects or refuses to maintain his wife, his legitimate or illegitimate minor child, whether married or not, can be directed to pay monthly allowance for maintenance of his wife or child. It would be appropriate to reproduce Section 488 Cr.P.C. hereunder:

"488. Order for maintenance of wives, children and parents. -

(1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[x x x], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation. -For the purpose of this Chapter, "minor" means a person who, under the provisions of the Majority Act, Samvat 1977 is deemed not to have attained his majority].

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing].

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

(6) All evidence under this Chapter shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:

Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on an application made within three months from the date thereof.

(7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.

(8) Proceedings under this section may be taken against any person in any district where he is or he or his wife resides or where he last resided with his wife, or, as the case may be, with the mother of the illegitimate child."

Dominant and primary object of Section 488 is to give social justice to the woman, child and infirm parents etcetera and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. It provides that any person, who has sufficient means to maintain himself, cannot deny maintenance to his wife and children. The object is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to deserted wife.

Right to seek maintenance by the wife from her husband, is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife. [See: Hamida v. Ahmedullah Wani 2010 (7) JKJ HC-701].

Insofar as divorce having been pronounced on 31st May 2011by petitioner is concerned, the same cannot at all be treated as pronouncement of talaq by petitioner as his conduct depicts his intention to wriggle out of the responsibility that he has towards his wife in maintaining her.

Contention of petitioner is that he has divorced his wife and is not liable to pay any maintenance to his wife and, therefore, seeks quashment of petition under Section 488 Cr. P.C. titled Mst Zareefa and others v. Mohd. Mudasir Mir, the Trial Court order dated 13th February 2014, as also the Revisional Court order dated 4th September 2015, in this petition under Section 561-A Cr.P.C. Such a plea has no force and cannot be made use of for all that has been sought for by is evade payment of maintenance. Such a plea has been discussed in detail and decided by a Bench of this Court in Mohammad Naseem Bhat Vs Bilquees Akhter and another," (2012) 4JKJ 318. Paragraphs 26 & 27 thereof are relevant to be reproduced hereunder:

"26. 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 Talaak 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 Talaak was pronounced in presence of two witnesses endued with justice,

(iv) that Talaak 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 -- Talaak, 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 proof."

In the present case, grounds taken in the petition on hand do not offer any ground, muchless cogent or material one, to set-aside impugned orders or the petition under Section 488 Cr.P.C. Petitioner cannot deny paying maintenance to his wife and/or child. He is otherwise obliged to make payment of maintenance to them. Petition on hand unequivocally reflects and portrays disinclination on the part of petitioner to pay maintenance that has been directed by courts below to be paid by him. Resultantly, petition on hand is liable to be dismissed.

For all that has been said above, the instant petition is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.