Mohammad Shafi Bhat vs Haleema Begum

Janak Raj Kotwal, J.—Respondent, Mst. Haleema Begum, has filed a petition u/s 488, Code of Criminal Procedure (for short the Code)

against petitioner, Mohammad Shafi Bhat, seeking an order directing the petitioner to pay her monthly maintenance allowance of Rs. 3,000/-. She

also moved an application for interim maintenance at the rate of Rs. 1,000/- per month till final disposal of the main petition. Briefly, respondent has

alleged before the trial Magistrate that petitioner has turned her out of his house and refused to maintain her as his wife. She is working as

Anganwari Worker in Anganwari Centre on daily wage basis and gets meager wages, which are insufficient to make her both ends meet. She

requires more than Rs. 3,000/- per month in order to meet her expenses.

The petitioner has contested respondent's claim for maintenance on the grounds, firstly, that he has divorced the respondent on 22.02.2011 by a

Talaknama"" which has been sent to her by registered post on 05.03.2011 and secondly, that the respondent is a working hand as she is working

as Anganwari Worker at an Anganwari Center.

Learned trial Magistrate by order dated 13.6.2011 directed the petitioner to pay interim maintenance at the rate of Rs. 1,000/- to the

respondent till final disposal of the main petition. Petitioner challenged the said order in a revision before ld. Sessions Judge, Kupwara, but the ld.

Sessions Judge by his order dated 30.5.2012 dismissed the revision. Petitioner has now invoked inherent jurisdiction of this Court u/s 561A of the

Code for setting aside the order passed by ld. Magistrate as well as the order passed by the ld. Sessions Judge.

I have heard ld. counsel for the parties, perused the impugned orders and have gone through the record.

Petitioner has challenged the impugned orders on the ground, firstly, that respondent is neither destitute nor vagrant as she is employed in Social

Welfare Department as a daily wager, working on need basis and drawing salary more than the petitioner and is therefore, is in a position to

maintain herself and secondly, that ld. trial Magistrate has ignored the factum of the petitioner having divorced the respondent. It is contended that

the respondent has invoked sec. 488 of the Code for settling her personal acrimony with the petitioner, arising out of matrimonial discard with him

and thus, impugned orders have caused miscarriage of justice.

Learned counsel for petitioner sought to project that ld. trial Magistrate has passed order for interim maintenance without taking into

consideration the respondent's income and in total disregard of the respective incomes of the parties. Learned counsel would say that in passing the

impugned order, ld. trial Magistrate has failed to exercise its jurisdiction in accordance with sec. 488 of the Code, which has caused miscarriage of

justice.

Per contra, ld. counsel for respondent would say that the meager wages being received by the respondent as Anganwari Worker are not

sufficient to make her both ends meet and petitioner cannot be absolved of his responsibility to provide suitable amount for maintenance to the

respondent, who is his wife. It is further contended that learned Magistrate rightly has not refused interim maintenance on the basis of plea of

divorce raised by the petitioner. Whether the petitioner has divorced the respondent or the marital relationship has come to an end prior to filing of

the application for maintenance involve a question of fact, which petitioner will have to prove by leading evidence.

This court in Mohammad Naseem Bhat v. Bilquees Akhter and Anr. 2012 (4) JKJ (HC) 318 has laid down the conditions, which a husband

pleading divorce in a petition u/s 488 of the Code filed by the wife has to plead and prove. Plea of divorce, therefore, can be taken for

consideration on the basis of evidence to be led during the enquiry in the main petition and cannot be acted upon while deciding application for

interim maintenance.

As regards the other plea taken by the petitioner in his objections, ld. Magistrate in the impugned order, after referring to the respective pleas of

the parties, has observed:

However, in section 488 of Cr.P.C. the word used is that any person who is unable to maintain himself or herself. Hon'ble J & K High Court in

Arshid Hussain Bhat v. Asia Jan and ors. held that wife is entitled to maintenance if she is unable to maintenance herself, mere fact that she is an

employed would not disentitle her to get the maintenance, if she is unable to maintain herself.

Having so observed, ld. Magistrate directed the petitioner to pay interim maintenance to the respondent at the rate of Rs. 1,000 per month.

Observation made by ld. Magistrate, to say the least, is too scanty and obscure to convey the view taken by him/her and is seemingly self

contradictory. Why the source of income and the quantum of the income, whatsoever, of the respondent has not been taken into consideration is

not understandable.

It needs to be emphasized that grant of interim maintenance, which is now well recognized, is not independent of the wife's right to apply for

maintenance allowance u/s 488 of the Code. It is rather corollary to the right to claim maintenance allowance u/s 488 and is paid as interim

measure till final disposal of the main petition. Like in the main petition, there must exist all the requirements of sec. 488 for granting interim

maintenance too. The difference between the two however, is that whereas, in the main petition wife has to prove all the ingredients/requirements

of sec. 488 of the Code by leading evidence in a summary proceedings to be conducted by the Magistrate, the interim maintenance on the other

hand can be granted on prima facie assessment of pleadings (application/objections) of the parties and material produced by them. A detailed

inquiry at this stage is not required. The object in mind of the Magistrate should be to save the wife from vagrancy and starvation during the

pendency of the proceedings. To meet this object the Magistrate must take into account the financial status of the husband and income of both the

parties.

In this case, admittedly respondent is a working lady like the petitioner. She is working as Anganwari Worker at an Anganwari Center. While

contending that she is working as Anganwari Worker but not disclosing her income, she neither has disclosed the income of the petitioner nor has

contended that income of the petitioner is more than that of her. On the other hand the petitioner in his objections has contended that the

respondent is getting the salary of Rs. 3,000/- per month.

In face of the respective stands taken by the parties before the ld. Magistrate, it could not have been possible for the Magistrate to presume

that the respondent was unable to maintain herself. Interim maintenance therefore, should not have been granted and was not required to be

granted.

However, it may be added here that wife is entitled to lead life commensurate to the status of her husband. Status in context of interim

maintenance is to be determined on the basis of income of the husband. For the purpose of granting interim maintenance though income of the

husband should be the guiding factor but income of the wife and difference between the two are no less important factors to be taken into

consideration.

Ld. Magistrate has, therefore, failed to exercise his/her jurisdiction properly by ignoring the income of the respondent, whatsoever, and failing

to ascertaining the respective income of the two. This though was not possible from the pleadings of the parties but could have been done by

asking the parties, least to produce certificates from the concerned departments as regards their salary/wages. This could have been done easily.

Ld. Sessions Judge too has failed in this regard and has totally ignored this aspect of the matter even though in his revision petition the

petitioner had clearly stated that the respondent is getting monthly salary of Rs. 3,000/- as Anganwari Worker.

For aforementioned, in my considered view, learned Magistrate as also learned Sessions Judge have not properly exercised their jurisdiction

and orders passed by them cannot sustain.

Viewed thus, the impugned orders are set aside. Learned Magistrate may, however, reconsider the application for interim maintenance after

calling the salary certificates from both the parties. Record be remitted back alongwith copy of this order. Parties shall cause their appearance

before the trial Court on 16.05.2013.