Sayeda Begum vs Qayoom Bhat

Hon'ble Mr. Mohammad Yaqoob Mir, Judge

Parties are married to each other and from the wedlock four children are born, one after attaining the majority is also married. Disturbance in

matrimonial relationship has given rise to a situation where-under petitioner (wife) is living with her parents.

Petitioner has launched proceedings u/s 488 Cr. P. C for grant of maintenance before the Court of Judicial Magistrate(Sub Judge), Kupwara

where the respondent had taken an objection that the petitioner without any cause is living with her parents, respondent has never deserted the

petitioner but of late, due to unfortunate situation, he has divorced the petitioner, therefore, on both the counts is not entitled to any maintenance.

Learned Magistrate recorded a finding that ""Talaq"" cannot be pronounced unless some reasonable cause exist and an attempt for reconciliation

fails. Attitude of the respondent has been intolerable which has forced the petitioner to live with her parents. The affidavit sworn by one Nazir

Hussain Peer, father of the petitioner, was also taken note of, wherein father of the petitioner had deposed that always it is the petitioner who has

been at fault but said affidavit has been ignored because father of the petitioner had not appeared as a witness to prove contents of the affidavit.

Finally maintenance @ Rs.1300/ per month from the date of order i.e. 22.03.2011 has been awarded in favour of the petitioner.

Dissatisfied with the order, revision petition has been filed before the Court of Principal Sessions Judge, Kupwara. Learned Sessions Judge in

his detailed order dated 23.09.2011, while deciding the revision petition, has opined that the petitioner in fact has not been neglected but she,

because of her own faults, has left the house of the husband. While dealing with the contention of the petitioner to the effect that she was ill treated

at her matrimonial house in presence of children and local villagers, learned Sessions Judge has opined that amongst the children one is married

whereas, as per her own statement, she had alleged to have been beaten in presence of her neighbours but the petitioner has failed to examine her

child, the local villagers and her parents with whom she is living, to prove the valid reason for staying away from her husband and has also added

that three witnesses produced by the husband, who are local villagers and have first hand information about the relationship between the parties,

who in categoric terms denied the ill treatment to the petitioner (wife), instead they have added that the petitioner would leave the house of her

husband, matter was once deliberated upon in the local Jirgah(respectable of the village) and she was found at fault but despite that she would

repeat the practice of leaving the matrimonial house. The respondent is also shown to have, as a last resort, divorced the petitioner. Finally learned

Sessions Judge has concluded as under:

The evidence adduced by the applicant/respondent is not sufficient to prove that during the subsistence of her marriage with the petitioner/non

applicant, he neglected her or failed to maintain her. On the other hand as per evidence adduced by the petitioner/non-applicant it is the

applicant/respondent who without any justification not only left the matrimonial house but also disassociated herself from her husband and failed to

restore her relationship with him. As such despite her living in her parental house she is not entitled to any order for maintenance allowance. So far

as question of divorce is concerned, learned Sessions Judge has opined that the divorce deed has not been proved and consequently

pronouncement of ""Talaq"" is also not proved. Petitioner (respondent herein) is at liberty to seek declaration about the pronouncement of the

Talaq"" from a Civil Court, finally has concluded that the order dated 22.3.2011, passed by Judicial Magistrate(Sub Judge), Kupwara is set aside.

From the afore-stated facts and circumstances what would emerge is that the learned Sessions Judge has held that the petitioner is not entitled to

maintenance because she has no cause to live separate from her husband.

In terms of second Proviso to sub-section (3) of Section 488 Cr. P.C if the wife has a just ground for refusing to live with her husband, in spite

of offers by the husband to maintain on the condition of living with him, maintenance has to be granted but in case ground for refusal to live with

husband is not found to be just, then grant of maintenance is impermissible. It is this position in the backdrop of which learned Sessions Judge has

refused grant of maintenance. On the careful examination of the records as produced, what would emerge is that petitioner herself, after living for a

considerable period with her husband and after giving birth to four children, has resorted to the practice of running away from the house of her

husband for which there is no cause except one which she had projected that she is being beaten by her husband in presence of the children and

the neighbours. That could be the best ground provided proved.

Petitioner has neither produced any witness from the village where she was living nor she has produced even her elder son as a witness. As

compared to that, respondent had produced the witnesses from the village to support that in the meeting of respectable of the village always it is

the petitioner who would be found at fault. Petitioner has failed to prove that she was beaten, disrespected and ill treated which forced her to leave

the house of her husband, instead it is the respondent who, in evidence, has proved that the petitioner without any cause would run away from the

house of the respondent. That position is also supported by the affidavit sworn in by her father. Though her father has not appeared as a witness

but the position of affidavit has not been refuted. When an affidavit is sworn, that is a valid piece of evidence unless genuineness of the same is

specifically denied.

The view taken by the learned Sessions Judge while deciding the revision petition is in consonance with law, does not call for any interference,

as such, is maintained. Resultantly, petition is dismissed along with connected CMP.

Copy of the order along with respective records be send to both courts below.