Shabir Ahmad Shah vs Shameema

The present petition has been filed under section 561-A Cr.P.C by the petitioner for quashing of order dated 24.03.2018 passed by the Principal

Sessions Judge, Anantnag by virtue of which the interim maintenance of Rs. 3000/- per month was granted to the respondent.

The facts necessary for disposal of the present petition are that the respondent-wife along with her minor son had filed a petition under section 488

Cr.P.C. for grant of maintenance and the petitioner had filed the objections, in which he had taken a plea that he had divorced the respondent on

01.05.2010 as such, she was not entitled to claim maintenance. It is pertinent to note that the respondent in her petition under section 488 Cr.P.C. had

pleaded that two years prior to the filing of the petition, she was initially turned out of her matrimonial home and after two years with the intervention

of the respectable persons, particularly father-in-law of the respondent, a fresh nikahnama was executed between the parties on 28.08.2013. The

Judicial Magistrate, Bijbehara (hereinafter to be referred to as the learned trial court) vide order dated 13.06.2017 granted the maintenance of Rs.

2000/- in favour of the minor son of the parties, however, in so far as the interim maintenance to the respondent was concerned, the application was

kept pending as the learned trial judge was of the opinion that as the plea of divorce was taken by the petitioner so it was required to be seen whether

the respondent is the legal wedded wife of the petitioner or not and the same could have been determined only during trial. The said order was

assailed both by the petitioner as well as the respondent.

The revision petition against the order dated 13.06.2017 to the extent of denial of maintenance to the respondent by the learned trial court was

allowed by the Principal Sessions Judge, Anantnag vide order dated 24.03.2018 by virtue of which a sum of Rs. 3000/- was awarded as interim

maintenance to the respondent from the date of the filing of the application. The court of revision also held that after the divorce, the parties had

resumed the matrimonial relation and had executed the fresh nikahnama and in view of this, it was incumbent upon the trial court to grant interim

maintenance in favour of the petitioner (respondent herein) subject to the proof of divorce by the petitioner herein during trial.

The order dated 24.03.2018 has been assailed by the petitioner primarily on the ground that the court of revision has fallen in grave error while

granting the interim maintenance to the respondent, particularly when the plea of divorce had been taken by the petitioner in his objections and copy of

divorce was also placed on record and also once the learned trial court had kept the application for grant of interim maintenance pending so the court

of revision was not justified in granting the interim maintenance of Rs. 3000/- to the respondent.

Mr. M. A. Qayoom, learned counsel for the petitioner has vehemently argued that once a plea of divorce was taken by the petitioner so the

revisional court was not justified in granting the interim maintenance to the respondent. He also argued, assuming that the respondent was entitled to

interim maintenance still the court of revision could not have awarded the interim maintenance, particularly when the learned trial court had kept the

application for grant of interim maintenance of the respondent pending trial and had not decided the same.

On the contrary, Mr. S. S. Bashir, learned counsel for the respondent has vehemently argued that mere plea of divorce taken in the objections is not

sufficient to deny the interim maintenance to the respondent. He has placed reliance on judgment of this Court bearing No. CRMC No. 412/2018,

titled, Mushtaq Ahmad Badyari vs. Ruquya Akhter on 12.11.2020.

Heard and considered the rival contention of the parties.

So far as the first contention raised by the petitioner that once a plea of divorce was taken by the petitioner and subsequently nikahnama was

vehemently denied by him, the court of revision could not have passed the order for granting interim maintenance to the respondent. This court is of

the considered view that the court of revision has rightly held that the respondent is entitled to interim maintenance and also that the plea of divorce

and its effect is a matter of trial. This Court in Mushtaq Ahmad Badyari’s case (surpa) has held that mere plea of divorce taken in the objections

to the application for grant of interim maintenance would not disentitle the wife to get the interim maintenance. Hence, this Court does not find any

fault with the finding and observations made by the court of revision with regard to the entitlement of the respondent to the interim maintenance. The

second contention raised by the petitioner is that the trial court had not decided the application for grant of interim maintenance and had kept the same

pending. A perusal of the order passed by the learned trial court reveals that the learned trial court vide order dated 13.06.2017 has kept the

application of the respondent for grant of interim maintenance pending and did not decide the same. This Court finds force in the argument of Mr.

Qayoom that the court of revision could not have on its own granted the maintenance, particularly when the application was not decided by the trial

court. This court is of the considered view that once the trial court had not decided the application for grant of interim maintenance and had deferred

its decision, the court of revision should have directed the trial court to decide the application of interim maintenance in view of the finding that mere

plea of divorce in objections shall not disentitle the wife get interim maintenance. The court of revision should not have fixed the quantum, particularly

when the application for grant of interim maintenance was pending before the trial court and rather should have left the quantum at the discretion of

the trial court.

In view of all what has been discussed above, order dated 24.03.2018 passed by the court of revision to the extent of grant of Rs. 3000/ per month

as interim maintenance to the respondent is set aside and the learned trial court is directed to decide the application for grant of interim maintenance

within a period of thirty days from the date a copy of this order is furnished to the trial court.

Registry to send a copy of this order to the trial court forthwith.