Shameema and Others vs Ghulam Ahmad Mir

The SubJudge, Judicial Magistrate Kupwara in a maintenance application No. 19/95 under Section 488 Cr.P.C allowed maintenance to

Shamima for the period of Idat @Rs.500/ per month from 15111995 when the statement of the defendant husband of such divorcee was

recorded and also ordered maintenance of Rs. 300/ PM to Shahnaza his minor daughter from the date of application. This order dated 1521996

of Judicial Magistrate, Kupwara allowing the maintenance has been subject of revision before the Court of Sessions Judge, Kupwara.

The husband Ghulam Ahmad Mir, has challenged the order on the ground that Shamim has been divorced by him. Shamima has knowledge of

the divorce. The divorce was sent to her through post much before her filing of the application for maintenance in the Court. The divorce/Talaq

was not operative from 151195 when the revision petitioner made a statement in the court, but in fact form the date Shamima got knowledge of the

divorce. As Shamima got knowledge much before filing of application for maintenance, she is not entitled to any maintenance. Besides, the

maintenance for period of iddat cannot be granted by the Magistrate.

The learned Sessions Judge, Jipwara. after hearing the parties considered the matter. The Sessions Judge has referred the matter to this Court

with recommendation to set aside the order of the Magistrate awarding maintenance to mother and daughter against the respondents.

As the parties are not appearing de spite service, their presence has been dispensed with.

I have examined the record. Perusec the impugned order and the order of reference and considered the matter. So are as the first limb of the

impugned order of awarding maintenance of idat period to Shameema divorced wife is concerned, the recommendation of the learned Session:

Judge of quashing the order to this extent has to be accepted. This is so, in the light of the view taken by the Benches of this court that a divorced

wife is not entitled to maintenance for Idat period in proceedings under section 488 Cr.P.C, though the maintenance can be recovered under

personal law by a civil action. (AIR 1956 J and K 37, AIR 75, JF 1 1986 KLJ. 506 and SLJ 1995: 255).

So far as award of maintenance of Rs 300/ per month to the minor daughter is concerned, the recommendation cannot be accepted as this limb

of the order appear: reasonable and informed of the means of the husband and requirement of the child. By this order substantial justice appears to

have been done between the parties No exceptional circumstances appear on record to justify an interference by this Court in revision.

From record of the courts below, it appears that the father revision petitioner before this court is a regular employee of the B.S.F. He has

admitted Respondent No. 2 as his daughter and is with her mother. The respondent cannot avoid payment of maintenance on the ground that no

sufficient or other reasons have been taken on record to determine the maintenance to child. It is on record that the respondent before the trial

Magistrate is a regular employee of the B.S.F. He is on the roll of the B.S.F His capacity to earn is not denied. Awarding of Rs.300/ as

maintenance to the child from the date of application after keeping in view the father's capacity and income, potentiality and status as also the

requirements of the child cannot be said to be unreasonable. This court would not interfere to this extent, as it appears that substantial justice has

been done to the parties by the impugned order. No exceptional circumstances or compelling reasons have been made out to warrant interference.

With the result that recommendation to this extent is rejected.

For the aforesaid reasons, reference is accepted in part and the impugned order of awarding maintenance to wife, petitioner before the trial

court, for the period of Idat is quashed, while the order of awarding maintenance to the child respondent No.2 before the trial court is maintained.

The trial court need to take not that in 488 Cr.P.C matters, decrees are not required to be framed. It is inact the order awarding maintenance

within the confines of law laid down under Section 488 Cr.P.G. which has to be implemented. The observation of the trial court that the decree be

framed is otiose and not within parameters of law.

Certify this decision to the Court below and dispatch record to the trial court.