Mushtaq Ahmed vs Shahnaz Akhter And Another

Sanjay Dhar, J

The petitioner has challenged order dated 28.10.2016 passed by the Judicial Magistrate 1st Class, Mendhar, whereby monthly maintenance in favour of the respondents has been enhanced from Rs. 3000/- to Rs. 5000/-.

It appears that respondent No. 1, who claims to be the wife and respondent No. 2, who claims to be the minor son of the petitioner, filed a petition under section 488 of the Jammu and Kashmir Code of Criminal Procedure before the learned trial Magistrate. The learned trial Magistrate on the basis of the evidence on record passed judgment and order dated 28.01.2011 whereby respondent No. 1, the wife of the petitioner was held entitled to monthly maintenance of Rs. 2000/-whereas the minor son, respondent No. 2 was found entitled to monthly maintenance of Rs. 2000/- per month. It seems that the aforesaid judgment/order was challenged by the petitioner by way of a revision petition before the court of Principal Sessions Judge, Poonch who vide his order dated 23.11.2011 slashed down the amount of maintenance and directed that each of the respondents shall be entitled to monthly maintenance of Rs. 1500/- per month.

Subsequently, respondents moved an application under section 489 Cr.P.C. before the learned trial Magistrate seeking enhancement of maintenance. In their application, it was submitted by the respondents that after a lapse of more than three years, there has been escalation of prices and respondent No. 2, minor son of the petitioner, is now studying in a private school. It was further claimed that the petitioner is a Government employee drawing monthly salary of about Rs. 25,000/-to Rs. 28,000/- and as such, the respondents should be paid enhanced maintenance at the rate of Rs. 3,000/- each per month.

Learned trial Magistrate issued notice to the petitioner but he failed to contest the petition and after recording ex parte evidence, the learned Magistrate passed the impugned order thereby enhancing the monthly maintenance of respondent No. 1 to Rs. 3,000/- per month and that of respondent No. 2 to Rs. 2000/- per month (total Rs. 5,000/-).

The petitioner has called in question the aforesaid order on the grounds that respondent No. 1 has been divorced by him and as such, she is no longer entitled to any maintenance. It has been submitted that the petitioner has re-married and he has four children from his second marriage. Thus, according to the petitioner, it will be difficult for him to pay Rs. 5000/- per month to the respondents. It has also been submitted that even respondent No. 1 has re-married, thereby disentitling herself to grant of maintenance.

I have heard learned counsel for the parties and perused the record.

So far as the plea of divorce raised by the petitioner is concerned, the same has been gone into by learned trial court while passing its order dated 28.01.2011. After appreciation of the evidence, the learned trial court has come to the conclusion that divorce has not been pronounced upon respondent No. 1 nor was it brought to her knowledge by the petitioner. It is in these circumstances that learned Magistrate initially granted maintenance of Rs. 2000/- per month in favour of respondent No. 1 which was slashed down to Rs. 1500/- per month by the learned Sessions Judge. These findings have not been overset by any court. In fact the challenge laid by the petitioner to judgment dated 28.01.2011 passed by the learned trial court as also the judgment dated 23.11.2011 passed by the revisional court, has been declined by this Court inasmuch as the petition filed by the petitioner under section 482 Cr.P.C. before this Court, has been dismissed in terms of order dated 24.07.2020, whereafter even a petition for recall of this order has been dismissed by this Court vide order dated 06.10.2022. In face of this situation, the petitioner cannot raise the plea of divorce in these proceedings.

The second contention raised by the learned counsel for the petitioner is that the salary of the petitioner is not good enough to take care of the needs of respondents as well as the needs of his newly acquired family. Learned counsel for the petitioner has produced the salary certificate of the petitioner, according to which, he was drawing a gross salary of Rs. 22,618/- in the year, 2016. Having regard to the status of the parties and the requirement of a moderate household, an amount of Rs. 5,000/- per month awarded by the learned trial Magistrate can by no stretch of imagination be termed as exorbitant. In fact, the same appears to be on a lower side. The impugned order passed by the learned Magistrate while enhancing the quantum of maintenance in favour of the respondents does not call for any interference.

So far as contention of the petitioner that respondent No. 1 has re-married is concerned, the said contention was not raised by the petitioner either at the time of disposal of the original petition filed under section 488 Cr.P.C. or at the time of consideration of application for enhancement of maintenance. In fact, the petitioner did not participate in the proceedings when the application for enhancement of maintenance was considered by the learned Magistrate. If it is a fact that respondent No. 1 has re-married, the petitioner is at liberty to bring this fact to the knowledge of the learned Magistrate by way of an appropriate motion and seek modification/cancellation of order of maintenance granted in favour of respondent No. 1.

For the foregoing reasons, I do not find any ground to interfere with the impugned order. The present petition lacks merit and is dismissed.