We definitely need to note most seriously that in a very positive, progressive, pragmatic and powerful judgment titled Zahoor Ahmad Dar Vs Jameela Bano & Another and cited as CRM(M) No. 45/2021 that was reserved on September 11, 2023 and then finally pronounced on September 20, 2023, the Jammu and Kashmir and Ladakh High Court while speaking out most vocally in favour of legal rights of Muslim wife has unequivocally ordered a Muslim man to maintain his wife till the factum of divorce, as had been claimed by him, is established. It deserves mentioning here that Muslim personal law does not contemplate granting maintenance to a divorced wife. The Single Judge Bench comprising of Hon’ble Mr Justice Rajnesh Oswal however clarified that wife cannot be asked to live her life without any maintenance from her husband when the issue of dissolution of marriage is not proved.
While spelling out its stand most clearly, correctly and courageously, the Bench took the premise that denying maintenance would defeat the purpose of Section 488 of the CrPC (Pari Materia with Section 125 CrPC), which aims to provide temporary financial support to women during marital disputes. It cannot be glossed over that the High Court noted that petitioner (husband) had presented contradictory statements inasmuch as he claimed to have divorced his wife on one hand and stated that she had left their home on her own, on the other. Thus the Court had just no difficulty in concluding that the issue of dissolution of marriage is not properly proved and the Trial Court was right in ordering the petitioner to provide a monthly sum of Rs 7000 to respondent No.1 (wife).
No doubt, the Court rightly underscored that the purpose of Section 488 of CrPC which deals with maintenance, would be defeated if wives were denied maintenance solely based on unproven claims of divorce. To put it differently, the Court stated clearly pointing out that, “It shall defeat the whole purpose of Section 488 of Cr.P.C. Taking into consideration the object of the said provision, the concept of interim maintenance was evolved by the Supreme Court in ‘Savitri v. Govind Singh Rawat [(1985) 4 SCC 337]’.” Resultantly, we thus see that the Court found no abuse of process of law which could warrant the indulgence of the Court, Thus it dismissed the plea.
At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Rajnesh Oswal sets the ball in motion putting things in perspective by first and foremost putting forth in para 1 that, “The respondents had filed an application against the petitioner under Section 488 of the J&K Cr. P. C for grant of maintenance and along with the same, an application for grant of interim maintenance was also filed. The respondents had pleaded that respondent No.1 was the legally wedded wife of the petitioner and out of the wedlock, respondent No.2, who was seven years old at the time of filing of the application under Section 488 of the J&K Cr. P. C, was born and one female child was also born who was residing with the petitioner. It was stated that the petitioner and his family members were greedy by nature and they always demanded dowry despite the fact that the parents of the respondent No.1 had given sufficient dowry to the petitioner and his family and in the month of June, 2019, the respondents were thrown out of the residence by the petitioner. It was also pleaded that the petitioner was plying a transport vehicle in different districts and was earning an amount of Rs.20,000/ per month.”
As we see, the Bench then points out in para 2 that, “In opposition to the application under Section 488 of Cr.PC, the petitioner filed his response stating therein that he had already divorced respondent No.1 by virtue of divorce deed dated 28th June, 2019. It was also pleaded that the respondent No.1 on her own opted to leave the company of the petitioner along with minor son Mohammad Hadi and she had taken away all the things from his home.”
As it turned out, the Bench then lays bare in para 3 that, “The Special Mobile Magistrate/Passenger Tax & Electricity Magistrate, Srinagar (hereinafter referred to as “the trial court”) after hearing the parties and considering the material on record, vide order dated 19.01.2020 directed the petitioner to pay a monthly interim maintenance of Rs.7000 (Rupees seven thousand) and Rs.4000 (Rupees four thousand) to the respondents No.1 and 2 respectively.”
Needless to say, the Bench mentions in para 7 that, “Heard and perused the record.”
Do note, the Bench notes in para 8 that, “The sole contention of the petitioner is that the respondent No.1 was divorced by the petitioner, as such the learned trial court could not have directed him to pay maintenance to the said respondent.”
To be sure, the Bench then discloses in para 9 that, “The initial relationship of husband and wife between petitioner and respondent No.1 is not in dispute. The ground urged by the petitioner is that he had divorced the respondent No.1. The perusal of the impugned order reveals that the learned trial court has taken note of the divorce deed produced by the petitioner before it and after taking note of the contention of the petitioner in respect of the dissolution of marriage between petitioner and respondent No.1, the learned trial court has directed the petitioner to pay an amount of Rs.7000/ per month to respondent No.1.”
It is worth noting that the Bench then hastens to add in para 10 observing that, “From the response filed by the petitioner before the trial court, it appears that contradictory stands have been taken by the petitioner. In para (2) of the response, he has stated that he has divorced the respondent No.1 by virtue of divorce deed dated 28th June, 2019 whereas in para (4) of parawise reply, he has stated that the respondent No.1 herself left her matrimonial home in July, 2019.”
Most crucially, the Bench while citing relevant case laws hastens to add in para 11 propounding clearly that, “The issue of dissolution of marriage by virtue of divorce deed dated 28th June, 2019, is required to be proved like any other fact and till the same is proved in accordance with law, the respondent No.1 cannot be asked to live her life without any maintenance from her husband. It shall defeat the whole purpose of Section 488 of Cr. P. C. Taking into consideration the object of the said provision, the concept of interim maintenance was evolved by the Supreme Court in ‘Savitri v. Govind Singh Rawat [(1985)4SCC 337]. This Court in the case of Mushtaq Ahmad Badyari vs Ruquya Akhter [2020(6) JKJ(HC)182] has already considered an identical issue and has observed as under:
13. Learned counsel for the petitioner has placed much reliance upon the judgment of the coordinate bench of this Court, titled, Masarat Begum vs Abdul Rashid Khan and another. The said judgment also cannot come to the rescue of the petitioner. The application for interim relief has been decided by the trial court on the basis of admitted fact about the marriage between the parties in the year 2014 and whether there was valid talaq and whether talaqnama was communicated to the respondent are the disputed questions of facts those can be adjudicated upon only during trial and if the wife is denied any maintenance till the proof of the said fact, it will defeat the very purpose for which the Apex Court has evolved the principle of grant of interim maintenance. The admitted fact remains that there was a relationship of husband and the wife and once there is a plea of dissolution of marriage by a husband, the onus is always on the husband to prove the same by way of cogent evidence. The respondent-wife cannot be denied interim maintenance solely on the plea taken by the petitioner-husband in his objections that he has sent the divorce deed to the respondent and when there is nothing on record to demonstrate that the respondent-wife has ever received the divorce deed particularly when the stand taken by the petitioner before the two courts is contradictory.”
As a corollary, the Bench then mandates and directs in para 12 holding that, “In view of the above, this Court does not find that there is any abuse of process of law or the indulgence of this Court is warranted in the interests of justice. The present petition is found to be misconceived and the same, accordingly, dismissed.”
Finally, the Bench concludes by directing in para 13 that, “A copy of this order be sent to the learned trial court for information.” In essence, we should thus after reading this most commendable ruling by Jammu and Kashmir and Ladakh High Court entertain no doubt of any kind on the question of granting maintenance to a Muslim women as it is made indubitably clear that maintenance cannot be denied to a Muslim wife when factum of divorce not properly established.
In other words, it is a sine qua non which deserves underlining that for the moot question of granting maintenance to a Muslim wife, we must be absolutely clear that all the Courts must definitely pay heed to what the Jammu and Kashmir and Ladakh High Court has held so elegantly, eloquently and effectively in this leading case! Just no denying or disputing it!