SHAMEEMA AND ANOTHER Vs. NIYAZ AHMAD BHAT

JUDGEMENT

(1.) Mst. Shameema petitioner herein, on 11th July 2005 filed an application under section 488 Code of Criminal Procedure on her behalf and on behalf of her minor son Master Akib Niyaz against respondent in the court of Chief Judicial Magistrate, Srinagar. The petitioner pleaded that in the year 2004 she along with her minor son was thrown out by her husband from her marital home and was thereafter left by him without any maintenance allowance. It was pleaded that respondent was possessed of sufficient means while petitioner and her son had no source to fall back upon.

(2.) The respondent opposed the application, inter-alia, on the ground that he had divorced the petitioner vide Divorce Deed dated 6th July 2005, duly served on petitioner and that he, therefore, was not under any obligation to pay maintenance allowance to petitioner Mst. Shameema. The respondent, to lend support to his stand, placed photo copy of the Divorce Deed dated 6th July 2005 on the file.

(3.) Learned Magistrate afforded parties adequate opportunity to adduce evidence in support of their respective stands. The Trial Court on going through the pleadings and evidence brought on the file concluded that the only controversy arising out of pleadings related to divorce claimed to have been pronounced by respondent on 6th July 2005. However, the evidence available on the file, according to Learned Trial Magistrate, did not inspire confidence and enable respondent to discharge the burden placed on him. The respondent, for the reasons detailed in the order dated 26th March 2007, was held to have failed to prove that he had divorced the petitioner in accordance with law. Learned Magistrate proceeded to conclude that petitioner Mst. Shameema was, what Learned Magistrate called undivorced wife of respondent and respondent, therefore, under the Statutory obligation to pay maintenance allowance to petitioner, irrespective of his source of income. Learned Trial Magistrate, accordingly, directed respondent to pay an amount of Rs. 1200/- per month as maintenance allowance to each of the petitioners with effect from 11.07.2005 i.e. date of filing of the application.