Mst. Sabika Rizvi And Ors vs Syeed Sujath Rizvi

In terms of the instant petition prayer has been made for quashing the procedure adopted by the learned trial court while dealing with the execution application and to pass appropriate orders warranted in the facts and circumstances of the case and ensure payment of maintenance amount to the petitioners by passing appropriate orders.

Precise grounds as projected in the petition are that the:-

a) Petitioners and respondent are the family members of the dissociated family but the respondent has contracted second marriage with another girl.

b) Petitioners, which include the minor children, are constrained to reside with the father of petitioner No. 1(first wife), who is a blind person and without any source of income, as such, have burdened him.

c) Petitioners have filed the application seeking maintenance against respondent before the Court of learned Chief Judicial Magistrate, Srinagar which was later on transferred to the court of Passenger Tax (Special Mobile Magistrate),Srinagar, and the said Court was pleased to consider the matter and passed the order dated 11.11.2013, whereby maintenance @ Rs. 5000/- per month in favour of petitioner No.1(wife) and Rs. 2500/ each in favour of petitioner Nos. 2 & 3(minor children) was granted.

d) Thereafter, the petitioner filed an application for execution of the said order dated 11.11.2013 but since the Presiding Officer of the said Court i.e. Passenger Tax proceeded on long leave with the result execution application remained pending, forcing the applicant to seek transfer of the said case from the court of Passenger Tax to any other court of competent jurisdiction.

Learned Chief Judicial Magistrate, Srinagar vide order dated 26.08.2014 directed transfer of the said case to the court of learned Sub Registrar, Judicial Magistrate Munsiff, Srinagar.

e) That on the date fixed before the court of Sub Registrar, the petitioner pressed for execution application but the learned court asked the petitioner to produce the witnesses for the decision of the main case, keeping the execution application pending without assigning any reason.

f) The respondent has not paid any maintenance towards the petitioners till date.

On perusal of the file it transpires that on the very first date of hearing i.e. 30.10.2014, the Court after hearing the matter issued notice and directed the respondent to comply with the terms of order dated 11.11.2013 passed by the learned trial Court and pay interim maintenance to the petitioners herein. Thereafter, in terms of the order dated 01.01.2015, when it was observed by the Court that respondent was neither interested in paying the maintenance nor presented himself before the Court, as directed earlier, ordered issuance of non-bailable warrant of arrest against him executable through Superintendent of Police, Sopore and listed the matter on next day i.e. 02.01.2015. On that date, SHO concerned produced the respondent and it was directed that the respondent shall pay the remaining amount of maintenance by or before next date of hearing.

During the course of hearing of this matter it was thought proper to ask the parties to settle the dispute amicably and for that service of one of the senior Advocates was solicited but same did not fructify.

In terms of the order dated 12.04.2016, it was recorded that out of the arrears of maintenance amount, Rs.90,000/- were already paid to the petitioners after adopting coercive methods by the Court for seeking presence of the respondent. It was also observed in the said order that the approach adopted by the respondent is not only inhumane but unbecoming too if not obnoxious and, accordingly, issued bailable warrant for securing presence of the respondent. He was also directed to deposit an amount of Rs.2.00 lacs before the Registry within one week. Thereafter, vide order dated 27.10.2016, petitioner no.1 submitted that she had received an amount of Rs. 50,000/- from the respondent.

Then, vide order dated 28.12.2016, it was established that out of the total amount of Rs.3,60,000/- due to the petitioners, only Rs. 1,60,000/- were paid to them and the remaining amount is unpaid. It was, therefore, directed to the respondent to deposit further amount of Rs.30,000/-, failing which he was to remain present on next date. On next date of hearing i.e. 03.03.2017, learned counsel for the respondent handed over Rs.30,000/- to the petitioner No.1 in order to facilitate admission of their two minor children in some reputed school at Srinagar. Further amount of Rs.50,000/- was directed to be deposited by the respondent in terms of the said order. However, vide order dated 26.10.2017, learned counsel for respondent submitted that the respondent could manage only Rs. 20,000/- and sought further time for depositing balance amount of Rs. 30,000/-, which was granted.

In terms of the order of this court dated 29.10.2018, learned counsel appearing for the respondent submitted that the petitioners have not specifically called in question any order passed by the learned trial Magistrate and the matter may be listed for final hearing. Same was not objected by other side. However, according to the petitioners, respondent has paid only part of the maintenance amount, to which learned counsel for the respondent sought some time to ascertain the actual position. However, in the meanwhile, respondent was directed to make payment of due amount to the petitioners. Then, in terms of the order dated 14.11.2018, it was deemed proper to direct the petitioners to submit full particulars of the amount which was due from the respondent.

Petitioners, through the medium of IA No. 01/2018 have given details of the due amount of maintenance, wherein it is stated that the petitioners, in terms of the order passed by the learned trial court, are entitled to the total amount of Rs. 10,000- per month from January, 2013 and the arrears till date comes to the amount of Rs. 7,20,000/-; out of which only Rs. 2,10,000/- have been paid, therefore, prays for payment of the remaining amount.

The contention put-forth vehemently by learned counsel for the petitioners is that the petitioners are entitled to the benefits of the order passed by the learned trial court, whereby maintenance was granted in their favour. It is further contended that part of the amount has already been paid but still a huge amount remains to be paid. It was legal and religious obligation of the respondent to maintain the petitioners which include his minor children. It is the submission of learned counsel for the petitioners that the main petition be kept alive and appropriate orders may be passed in IA No. 01/2018, whereby payment of balance amount i.e Rs. 5,00000/- is sought.

There is nothing on record from which it could be inferred that the learned Magistrate, seized of the matter, has proceeded in a manner unknown to the procedure as submitted in Para-8 of the petition. There is, as such, no scope for exercising of power under Section 561-A Cr.PC and passing of any direction consequent thereon for quashing proceedings pending before the learned trial Magistrate. The learned trial Magistrate, at the most can be asked to proceed in terms of Section 488, 489 Cr.PC in case any motion is presented on behalf of the petitioners before him for execution and realization of the amount, if any due from the respondent, which, as such, the learned Magistrate is directed to have resort to if approached hereinafter. Learned Magistrate, in case motion is presented before him for realization of the amount and execution of the order passed in the proceedings, the learned Magistrate, however, shall take into account the amount whatever has been paid till date by the respondent before this Court or whatever he may deposit hereinafter before the Registry and which became due during the currence of the proceedings hereinafter.

The limited question which needs examination and for which further action is required to be taken is about the directions passed by this Court from time to time for making payment of maintenance allowance in favour of the petitioners, referred hereinabove. Further orders are accordingly passed in this background hereinafter.

On a cursory examination of the case it has come to fore that the matter revolves around non-payment of the maintenance amount, as ordered by the learned trial Magistrate vide order dated 11.11.2013 in favour of the petitioners. This Court, time and again directed the respondent to ensure payment of due amount to the petitioners but same has been so casually taken that base is furnished prima facie for deducing the respondent is willfully disobeying the directions of the Court, so passed.

For complying with the directions of the Court passed from time to time for making payment of amount of maintenance, respondent is given two weeks' time, failing which Rule may have to be framed against him as to why he may not be dealt with under law for disobeying the court directions. If need arises, it may be also brought to the notice of Lord Chief Justice with the request to examine the necessity of assigning the matter to the Disciplinary Committee of the High Court for appropriate action against the respondent. Same is deemed proper in view of the fact that respondent, a practicing Advocate in High Court, is not expected to observe in breach the directions of Court and to do what is unbecoming of a practicing Advocate.

Since proceedings before the learned trial Magistrate may have been stalled due to pendency of the instant petition, the learned trial Magistrate shall proceed ahead in the matter under law.

Accordingly, CRMC No. 199/2014 is disposed of along-with all connected applications except IA No. 01/2018, which shall be delinked and listed separately for further consideration on 12.03.2019.

A copy of this order be sent to the learned trial Magistrate concerned, for information.