Sheikh Mohammad Shafi vs Mehmooda on 6 November, 2017

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A no. 56/2017
MP no. 01/2017
Date of order: 6th November, 2017.

Sheikh Mohammad Shafi
Vs.
Mehmooda

Coram:
Hon’ble Mr. Justice M. K. Hanjura, Judge.

Appearance:
For the Petitioner(s): Mr. J. A. Kawoosa, Adv.
For the Respondent(s): Mr. Sheikh Hilal, Adv.

i) Whether to be reported in Press/Media Yes/No

ii) Whether to be reported in Digest/Journal Yes/No

1. The facts that stem out from the instant petition under section 561-A Cr.
P.C. filed for quashing the order dated 10.12.2016 of the learned Chief
Judicial Magistrate, Budgam, passed in an application under
section 488
Cr. P.C. titled Mehmooda versus Sheikh Mohammad Shafi, are that after
the expiry of the wife of the petitioner, the petitioner married the
respondent. The petitioner had two issues from his first wife – one male
and one female. It is pleaded that after this marriage the attitude and the
behavior of the respondent towards the family of the petitioner including
his mother was not cordial. The respondent tried to pressurize the
petitioner to transfer his immoveable property in her favour. The
petitioner refused to do so, as a consequence of which the respondent

561-A no. 56/2017 Page 1 of 9
went to her parental house and did not return even on the death of the
mother of the petitioner in April 2016. The respondent filed the above
titled petition u/s 488 Cr. P.C. for maintenance before the learned trial
court. The learned trial court referred the matter to mediation. The parties
appeared before the mediator. The parties did not reach at any conclusion
and resultantly the mediation failed. A report to that effect was also
submitted by the mediator before the learned trial court. It is submitted
that when the mediation failed between the parties, the petitioner divorced
the respondent and executed a deed of divorce on 4th of May 2016. The
petitioner sent the divorce deed to the respondent through post along with
a cheque bearing no. 738448 dated 05.05.2016 amounting to Rs. 10,000
as maintenance for the period of iddat in an envelope which was returned
by the counsel for the petitioner. The respondent had refused to accept it.
The petitioner filed an application before the learned trial court for taking
on record the divorce deed along with the cheque in the form of
maintenance for the period of iddat. The said application was taken on
record by the learned trial court. The learned trial court without
considering the facts of the case granted interim maintenance @ Rs.5,000
per month in favour of the respondent in terms of impugned order dated
10.12.2016, which is against the law and facts detailed in the petition

2. Heard and considered. The trial court record has also been perused by me.

3. To canvas his argument that the trial court erred in passing the order of
maintenance, the learned counsel for the petitioner has put explicit
reliance on the law laid down by this court in the case of Masarat
Begum versus Ab. Rashid Khan and another reported in 2014 (3) JKJ
1 (HC), the relevant excerpts of which are detailed below:

561-A no. 56/2017 Page 2 of 9

26. During the course of hearing of this case, reference was
also made to the judgment of another Coordinate Bench of
this Court in Mst. Amina Banoo v. Abdul Majid Ganai, 2005
(I) SLJ 341. In that case, the petition under
Section 488 Cr.
P. C. had been dismissed by the learned Magistrate in hot
haste without the divorce having been proved, as held by the
Court. The Court, relying on the judgment of the Supreme
Court in Shamima Ara v State of U. P., AIR 2002 SC 3551
(wrongly mentioned in the judgment as ‘
Syed Jamaluddin v.
Valian Bee’), allowed the petition under
Section 561- A Cr.
P. C. and directed the learned trial Magistrate to decide the
petition within three months.

27. It would be apt to also make a reference to the judgment
of the Supreme Court in Shamima Ara v State of U. P.
(supra). In that case the High Court had found that the
divorce which was alleged to have been given by the
respondent therein to the appellant was not given in the
presence of the appellant and it was not the case of the
respondent that the same was communicated to her. The
High Court had held, but the communication would stand
completed on 5.12.1990 with the filing of the written
statement by the respondent No.2 in the present case .
Therefore, the High Court had concluded that the appellant
was entitled to claim maintenance from 1.1.1988 to
5.12.1990 (the later date being the one on which reply to
application under
Section 125 Cr. P. C. was filed by the
respondent no.2 in the Court). In light of the aforesaid facts,

561-A no. 56/2017 Page 3 of 9
the Supreme Court in paragraph 16 of the judgment held as
under:

16. We are also of the opinion that the talaq to be effective
has to be pronounced. The term pronounce means to
proclaim, to utter formally, to utter rhetorically, to declare
to, utter, to articulate (See Chambers 20th Century
Dictionary, New Edition, p. 1030). There is no proof of talaq
having taken place on 11.7.1987. What the High Court has
upheld as talaq is the plea taken in the written statement and
its communication to the wife by delivering a copy of the
written statement on 5.12.1990. We are very clear in our
mind that a mere plea taken in the written statement of a
divorce having been pronounced something in the past
cannot by itself by treated as effecting talaq on the date of
delivery of the copy of the written statement to the wife. The
respondent No.2 ought to have adduced evidence and proved
the pronouncement of talaq on 11.7.1987 and if he failed in
proving the plea raised in the written statement, the plea
ought to have been treated as failed. We do not agree with
the view propounded in the decided cases referred to by
Mulla and Dr. Tahir Mahmood in their respective
commentaries, wherein a mere plea of previous talaq taken
in the written statement, though unsubstantiated, has been
accepted as proof of talaq bringing to an end the marital
relationship with effect from the date of filing of the written
statement. A plea of previous divorce taken in the written
statement cannot at all be treated as pronouncement of talaq

561-A no. 56/2017 Page 4 of 9
by the husband on wife on the date of filing of the written
statement in the Court followed by delivery of a copy thereof
to the wife. So also the affidavit dated 31.8.1988 filed in
some previous judicial proceedings not inter parte,
containing a self-serving statement of respondent No.2,
could not have been read in evidence as relevant and of any
value. The law laid down in the aforesaid judgment is
clear that a plea in the written statement by itself cannot be
taken as effecting divorce. Essentially, therefore, the plea of
a previous divorce has to be proved, especially so when it is
not addressed to the wife.

28. Coming to the instant case, respondent no.1 has taken
the plea that he has divorced the petitioner by a written
deed, talaqnama , executed by him on 30.07.2009 in
presence of witnesses. The original of the talaqnama has
been placed on record. It bears the signatures of the
respondent as well as the scribe of the deed and two
witnesses. It has been attested by Notary Public and bears
the seal and signatures of the Notary Public. Though
executed prior to the date of filing of the application for
maintenance by the petitioner, it cannot be said that the plea
taken is simply to wriggle out of the liability to maintain the
petitioner. Of course, this talaqnama is required to be
proved for final determination of the question whether or not
the petitioner is entitled to the grant of maintenance in her
favour. But for grant of interim maintenance there must be
some material to come to a prima facie finding that the

561-A no. 56/2017 Page 5 of 9
marriage between the parties subsists. Therefore, the
argument of the learned counsel that till the divorce is
proved the relationship between the petitioner and
respondent no.1 as husband and wife would be deemed to be
subsisting and, consequently, the petitioner would be entitled
to interim maintenance till such time the divorce is proved is
an argument not buttressed by the Personal Law governing
the parties.

30. Having minutely gone through the impugned judgment, I
find the same well reasoned and in accordance with law. As
discussed hereinabove, and to sum up the law on the point,
the statutory provisions of
Sections 488 to 490 Cr. P. C do
not contemplate the grant of interim maintenance, and the
same has been developed by law of precedence. The concept
so developed is strictly restricted by two complementary
rigours; first, the rigour of the principles governing the
grant of interim relief, and second the personal law, subject
to which alone the interim maintenance can be granted.
Viewed thus, in order to justify the grant of interim
maintenance, the applicant has to establish a prima facie
case, that she is entitled to maintenance under
Section 488
Cr. P. C. In order to arrive at such a conclusion the
Magistrate is required to have some semblance of material
on record in the shape of evidence. The learned Session
Judge by the impugned order, as noticed above, has rightly
directed the learned Magistrate to consider the matter afresh
on the basis of evidence of summary nature to be produced

561-A no. 56/2017 Page 6 of 9
by the parties and pass fresh orders in accordance with law.
Therefore, the judgment of the Revisional Court, stating the
correct position of law, does not warrant any interference
under the inherent powers of this Court.

4. The law laid down above is perspicuous and clear. Applying its ratio to
the facts and circumstances of the instant case it needs to be said that
interim maintenance at the rate spelt above has been awarded in favour of
the respondent by order dated 10.12.2016 of the court of Chief Judicial
Magistrate, Budgam. This order is cryptic in details. To understand the
import and application of this order in the proper perspective, it will be
profitable to quote the relevant extracts thereof herein below verbatim:

“Heard the learned counsels and perused the pleadings. The
relationship between the parties are not denied and so far as the
grounds taken by the respondent for denying the maintenance are
concerned the same needs evidence and trial and till then the
petitioner cannot be left to starvation especially under the
circumstances when neither the relationship nor the earning
position is denied. This being so a case is prima facie made out for
interim maintenance.”

5. The judgment of law cited above provides that sections 488 to 490 cr.
P.C. do not envisage a situation where interim maintenance can be
directed to be paid. It proceeds to state that this thought has developed by
the law of precedence and the concept so developed has to be tested on
the extreme severity, firstly, of the elementary principles governing the
grant of interim relief, and secondly, the personal law subject to which
alone the interim maintenance can be granted. The condition precedent
for the grant of interim maintenance is that the applicant has to establish a

561-A no. 56/2017 Page 7 of 9
prima facie case so as to attach at least a semblance of fairness to such an
order. This could have been done by placing reference to the material on
record in the shape of some evidence. The learned court below has passed
a sweeping order without deriving prima facie satisfaction on the count
that the facts and circumstances of the case did warrant and justify the
grant of interim maintenance in favour of the petitioner. Therefore, the
order of the trial court cannot sustain in the eyes of law.

6. Looking at the petition of the petitioner from another angle, the petitioner
has placed on record a written deed of divorce executed by him on 4 th
May 2016 in presence of two witnesses. It bears the signatures of the
executant and two witnesses. The application for the grant of maintenance
has been filed on 10.2.2016 meaning thereby that the deed of divorce has
been executed after the date of the institution of the petition. The
contention of the petitioner is that this deed was sent to the respondent
wife through post but she refused to accept it. The petitioner has produced
this deed of divorce before the court that allowed the application for the
grant of interim maintenance in favour of the respondent wife. It can by
no stretch of imagination be said that the deed of divorce is a ploy
devised by the petitioner to extricate himself from the payment of
maintenance. The deed of divorce is required to be proved for final
determination of the question, whether, or not, the petitioner is entitled to
the grant of interim maintenance. The plea of divorce has to be proved
before the court dealing with the grant of maintenance. The argument of
the learned counsel that till such time that the divorce is proved, the
relationship between the petitioner and the respondent as husband and
wife would be deemed to subsist as a corollary to which the petitioner
would be entitled to interim maintenance upto the date of the proof of the

561-A no. 56/2017 Page 8 of 9
deed of divorce, is a spurious argument and not supported by the personal
law governing the parties.

7. Having minutely gone through the impugned order, I find that the same is
not in accordance with law. In order to justify the grant of interim
maintenance, the respondent had to establish at least a prima facie case,
that she is entitled to such grant. The order of the grant of interim
maintenance under the aforesaid circumstances is an abuse of the process
of Court. It cannot sustain and is, accordingly, quashed. However, this
order shall not preclude the trial court from recording a fresh finding
relating to the grant of interim maintenance in favour of the respondent
on the basis of some material on record that will attach a sense of fairness
to it.

(M. K. Hanjura)
Judge
Srinagar
November 6th, 2017
N Ahmad

561-A no. 56/2017 Page 9 of 9

Leave a Comment

Your email address will not be published. Required fields are marked *