Sec 125 CrPC | Muslim Husband Cannot Avoid His Liability To Maintain Unless Divorce Is Validly Pronounced And Properly Communicated : J&K&L High Court

A bench of Justice Sanjay Dhar was hearing a plea wherein the petitioner had challenged an order passed by Chief Judicial Magistrate, Budgam, whereby, in a proceeding under Section 488 of the J&K Cr. P. C, (Pari Materia with Sec 125 CRPC) the Magistrate had granted a monthly interim maintenance to the tune of Rs.2000/ to respondent No.1 and Rs.1500/ to respondent No.2. The petitioner had also thrown challenge to order passed by Sessions Judge, Budgam, whereby, while dismissing the revision petition against the impugned order passed by the learned Magistrate, the Sessions Judge has upheld its validity.

The petitioner primarily challenged the maintenance order on the ground that a divorced Muslim wife is not entitled to maintenance in terms of the provisions contained in Section 488 of the J&K Cr. P. C and, as such, even interim maintenance cannot be granted in her favour. The petitioner further informed the court that that respondent No.1, had been divorced by the petitioner in terms of communication dated 10.01.2019 issued by Anjuman Sharie Shiaan J&K, is not therefore not entitled to any maintenance from the petitioner.

The moot question for adjudicating before the court was as to whether the production of document issued by Anjuman Sharie Shiaan, J&K, would conclusively and/or even prima facie show that respondent No.1 had been divorced by the petitioner, which in turn would have answered the question as to whether respondent No1 was entitled to claim maintenance from the petitioner.

Deciding the matter the bench observed that it is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife.

Explaining the said position of law the bench recorded the observations of supreme court in Shamim Ara v. State of U.P. and another, (2002) 7 SCC 518 wherein SC observed

"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".

The bench also placed reliance on a Judgement of J&K High Court in Mohd. Naseem Bhat v. Bilquees Akhter and another wherein Court observed that for a husband to wriggle out of his obligations under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaak or executed divorce deed to divorce his wife but has to compulsorily plead and prove the following:-

I) that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit.

II) that he had a valid reason and genuine cause to pronounce divorce on his wife.

III) that Talaak was pronounced in presence of two witnesses endued with justice.

IV) that Talaak was pronounced during the period

Discussing the law further the bench observed,

"The petitioner has come up with a plea that he has divorced respondent No.1 on 10.01.2019. The burden is upon the petitioner to show that his act of divorcing respondent No.1 was valid as per the Islamic law and that the divorce was communicated to respondent No.1. It is a settled principle of evidence that one who alleges a fact, the burden lies upon him prove the said fact. Therefore, burden is upon him to establish the said fact and unless he discharges the said burden, it cannot be stated that the marriage between him and respondent No.1 stands dissolved"

Dismissing the petition, the bench observed it is clear that unless the petitioner discharges his burden of showing that his relationship with respondent No.1 has ceased to exist, he cannot wriggle out of his liability to maintain the said respondent. The petitioner can do so only after facing trial in the case and till such time, he is obliged to pay interim maintenance to respondent, the bench concluded.

Case Title : Mohammad Ali Bhat Vs Shafeeqa Bano & Ors

Citation 2022 LiveLaw (JKL) 137

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