Noshad Ahmed @APPELLANT@Hash Safeena Bi

In the instant petition filed under Section 561-A Cr. P.C., petitioner seeks quashment of order dated 25th August, 2017 passed by the learned

SubJudge, Special Mobile Magistrate, Poonch. Â

The facts, as are emerged from the study of the file under consideration are that the petitioner-a private driver by profession got married with

respondent under the Muslim Law.  In this regard, Nikhanama was solemnized with the respondent as per Shariet Law in presence of the

witnesses and other respectable citizens on 28th May, 2013 at Ghani, Tehsil Mendhar, District Poonch. The petitioner and the respondent remained

as husband and wife only for a period of 5/6 months and thereafter, the respondent left the house of the petitioner with some ornaments and did not

return back to the house of the petitioner. After some time, the petitioner approached the respondent for the purpose of bringing her back to his

house, but she did not come back and thereafter, some respectable persons of the locality gathered and took a decision that the respondent shall come

back to the house of the petitioner, but she did not return to the house of the petitioner. Then again, the petitioner and other family members of both

the parties met together and on asking of the aforesaid persons, respondent came back to the house of the petitioner at Banwat, Poonch and remained

with her husband (petitioner) for about six months in 2014. Â

It is pleaded in the instant petition that in the year 2015, respondent again left the house of the petitioner without any reason and in the absence of

petitioner along with gold ornaments, as he was out of District Poonch with private vehicle. Even, she did not take consent of the parents of the

petitioner. One of the neighbours of the petitioner said that she made a statement that one of her relatives had died at Mendhar, as a result whereof,

she is leaving the house of the petitioner. Thereafter, she did not return to the house of the petitioner despite the fact that the petitioner and his

family members approached the respondent number of time for bringing her back to their house, but all in vain. Â

It is submitted that every time, she asked the petitioner to give her talak in presence of his family members. In this connection, the petitioner was

not in a position to give her talak because of the reason that the old aged mother and father of the petitioner had been residing there in the house of the

petitioner. Every time, the parents of the petitioner requested to the respondent’s family to return the wife of the petitioner, but they did not take

any heed.

It is further submitted that the petitioner did his best to return the respondent in the matrimonial house, but she did not come back to his house and

after waiting for a long period, the petitioner sent Legal Notices (Annexure-B) through his counsel on 03rd August, 2015 and 04th August, 2015.Â

One of the family members of the respondent is in the police department, who is harassing the petitioner by one way or the other.

It is also pleaded in the instant petition that a Resolution for settlement of all the disputes was written by the petitioner and the family members of

the respondent and the respondent returned to the house of the petitioner. Thereafter, the petitioner was asked to deposit the amount in the name of

the respondent and he cancelled the agreement for deposit of the amount of Rs. 2.00 lacs in favour of the respondent’s account.Â

It has also been pleaded in the instant petition that the petitioner remained in touch with the respondent’s family till 2017, insisting her family

members to ask her to come at the residence of the petitioner. The old parents of the petitioner are living with him and his other brothers are living

separately. Respondent insisted the petitioner that in case, he leaves his parents, she will come back to his house, otherwise not. The father of the

respondent and other witnesses of the petitioner and respondent wrote a Panchayatnama dated 24th January, 2017 and in the presence of the

aforesaid persons, the respondent got dower amount as mehar, amounting Rs. 3.00 lacs. The petitioner paid only Rs. 1.50 lac in the shape of golden

ornaments and the rest of the dower amount is doped by the respondent. Thereafter, some prominent persons of the locality met together and it was

resolved in the meeting that both the parties shall decide their dispute amicably. Thereafter, petitioner and the respondent decided to remain

separate from each other. Â The dower amount paid by the petitioner to the respondent is in the shape of Rs. 30,000/- cash, Rs.20,000/- already

deposited in the respondent’s account and rest of the amount is in the shape of ornaments etc. and Rs. 1.50 lacs was forfeited in presence of

witnesses of both the parties because of the reason that the respondent was interested to get divorce from the petitioner. It is submitted that the

petitioner set a Divorce Deed to the respondent on 02nd February, 2017 as per the settlement of the petitioner and the respondent in presence of the

witnesses, which clearly indicates that the petitioner and the respondent are not the husband and wife.

Thereafter, respondent approached the Hon’ble Court by way of filing baseless litigation u/s 488 Cr. P.C, seeking maintenance. In this

regard, once the petitioner has given divorce to the respondent, she is not entitled to any kind of maintenance as per Shariet Law and as such, the

claim of the respondent for maintenance is liable to be rejected.

The Trial Court vide order (Annexure-D) dated 25th August, 2017 passed an interim relief in favour of the respondent, granting her the

maintenance of Rs. 1500/- per month despite the fact that she has already taken divorce from the petitioner. The Talaknama was duly

communicated to the respondent through registered post and the respondent being divorcee is not entitled to maintenance from the pocket of the

petitioner and the interim order dated 25th August, 2017 passed by the Court below is against the facts of the case and the same is also in violation of

the judgment rendered in case titled, “Masrat Begum Vs. Abdul RashidKhan and ors., reported as 2014 (3) JKJ 1 as well as the Muslim Shariet

Law. The impugned order is also against the judgment of this Court passed in one of the case dated 30th January, 2018, wherein it is held that a

divorcee is not entitled to maintenance.

It is also pleaded in the instant petition that it was desirable for the Trial Court to go to the roots of the case, however, it has not appreciated the

objections filed by the petitioner, but has ordered the maintenance, to which the respondent is not entitled . Thus, the impugned order deserves to be

set aside on this score as well.

It is further pleaded in the instant petition that the Trial Court has not recorded its judicial satisfaction while issuing the order impugned. The said

aspect of the matter can be viewed by this Court while going through the said impugned order. As such, the impugned order/interim maintenance is

not sustainable in the eyes of law and the same deserves to be set aside.Â

I have considered the written as well oral submissions. On two counts, I do not want to entertain this petition. Firstly, order impugned is revisable

and petitioner without exhausting such remedy has approached this court, secondly petitioner has raised disputed question of facts, which are subject

to prove before court below and so these cannot be appreciated at this stage in this petition. Further, petitioner has laid his claims on divorcee deed,

which is in the shape of triple talaq, that has already been declared unconstitutional by the Apex Court. All the pleas taken and documents relied by

petitioner are subject to prove by leading evidence; that stage has not yet come.  Â

Law is clear that while invoking inherent powers, the High Court does a triple function. It gives effect to orders passed under the Code. It

prevents the abuse of the process of the Court, and it secures the ends of justice. Then there are principles of law applied as yardsticks to the

situations which call for High Court's interference. One such principle is that the High Court does not interfere at a premature stage of the

proceedings pending before the subordinate court. This involves interference at the threshold as well as, at the investigation stage. Another principle is

that matters which are specially dealt with in the Codes are kept outside the pale of inherent powers. Matters which are specifically included under

the Code are made immune to inherent powers. Thus while exercising inherent powers there is no determination of facts. Determination of facts is

one of the activities necessary for final judicial decisions by trial court.Â

In view of above discussion, this petition is dismissed.