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maintenance

No iota of evidence of divorce, hence petitioner liable to pay interim maintenance under Section 488 CrPC: Jammu & Kashmir High Court

So there is no perversity in the finding returned by the learned Magistrate and upheld by the learned court of revision that the petitioner has not been able to prove the plea of Talak taken in his objections. This was said in the case of Abdul Majeed Dar V Hafiza Begum And Anr [CRMC No.364/2018] by Mr. Justice Rajnesh Oswal in the High Court of Jammu and Kashmir

 The facts of the case are that a petition has been filed by the petitioner for quashing the order dated 29th April, 2017 passed by Trial Court as well as the order dated 7th August, 2018 passed by the learned Principal Sessions Judge, whereby the petitioner has been directed to pay maintenance to the allegedly divorcee lady. The only ground which the petitioner has raised in the present petition is that he had already divorced his wife vide, Talaq Nama‟ dated 2nd August, 2011 which was sent to her through registered post

The petitioner contended that he had proved the divorce by examining the scribe of the divorce deed and also the postman who delivered the registered letter to the respondent herein.

Per contra, the respondent contended that the petitioner had miserably failed to prove the divorce before the learned trial court and the said finding based on evidence has not been interfered by the court of revision and now the petitioner cannot dispute the said finding through the medium of present petition.

The learned Magistrate has recorded that “the petitioner has not been able to prove as to on which date the divorce was pronounced upon the respondent as the petitioner did not record his statement and simultaneously the trial court has observed that witness has simply stated that respondent was divorced by her husband but has not stated in which month and which year she was divorced. The learned trial court has also observed that the delivery of the envelope is also doubtful as the postman has not seen any such record in which he has obtained signatures of the respondent”.

While referring the judgment in Shameem Ara Versus State of U.P [AIR 2002 S.C. 355] the learned Magistrate in his order has disbelieved the plea of divorce taken by the petitioner in his pleadings. The learned court of revision has also upheld the said finding. Needless to mention here that if the plea of Talak is taken then the same is required to be proved like any other fact.

After perusing the findings of the learned Magistrate, the Court opined that “this Court does not find any substance in the contentions raised by the petitioner herein that he has successfully proved the divorce particularly in view of the fact that the petitioner has not bothered to appear as his own witness before the trial court. More-so there is not even an iota of evidence that any reconciliation efforts were made by two arbiters one chosen by the wife from her family and the other by the husband from his family. Furthermore, the petitioner has not led any evidence as to who sent the divorce to the respondent (wife) to prove the plea of Talak”. Hence, the petition was dismissed.

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