BHAJAN SINGH Vs. TEJINDER KOUR AND ORS.

JUDGEMENT

(1.) Through the medium of instant petition filed under section 561-A of CrPC, petitioner seeks quashment of order dated 29.01.2013 passed by learned Munsif (JMIC) Jammu in proceedings under Section 488 CrPC titled Tejinder Kour and Anr. v. Bhajan Singh by virtue whereof petitioner was directed to pay a sum of Rs. 5500/- per month to the respondents who are his wife and minor daughter as interim maintenance. Petitioner also assails the order formulated by learned 2nd Additional Sessions Judge Jammu dated 13.05.2013 in revisional proceedings upholding the impugned order passed by the Magistrate. The impugned orders have been assailed on the ground of non-application of mind and non-adherence to requirement of law. In a nutshell, the case set up by respondents before the learned Magistrate for enforcing their claim for maintenance under Section 488 CrPC was that the petitioner no 1 was the legally wedded wife of present petitioner and respondent No. 2 was born out of said wedlock; that the present petitioner, despite being possessed of sufficient means, had neglected and refused to maintain the respondents who were unable to maintain themselves. Plea put up by petitioner before the learned Inquiring Magistrate was that he had divorced respondent No. 1 in accordance with the custom prevalent in the family and society of petitioner and thus relationship between the present petitioner and respondent No. 1 as husband and wife no more subsisted, as such the petitioner was not liable to pay maintenance allowance to the Respondents. It appears that during the pendency of proceedings under Section 488 CrPC respondents filed an application for grant of interim maintenance which too was contested by the present petitioner on the plea of customary divorce. Learned Magistrate passed the impugned order allowing a monthly interim maintenance of Rs. 3000/- in favour of respondent-wife and Rs. 2500/-in favour of respondent-minor daughter till disposal of the main petition. The learned Magistrate noticed that the factum of marriage inter se the present petitioner and respondent No. 1 as also the birth of respondent No. 2 out of the said wedlock was an admitted position and the plea of customary divorce taken by present petitioner was to be proved at the trial. Learned Magistrate observed that mere taking of plea would not absolve the husband from liability of maintaining his wife. It further observed that insofar as minor daughter was concerned, she was entitled to maintenance notwithstanding the plea of divorce raised by present petitioner before the Inquiring Magistrate. In Revisional proceedings learned 2nd Additional Sessions Judge affirmed the view of learned Inquiring Magistrate that the plea of dissolution of marriage between parties by mutual consent had to be proved by the present petitioner during enquiry in the main petition and no intervention was required.

(2.) Heard the rival sides and perused the record.

(3.) Mr. Saini learned counsel for petitioner submits that marriage between petitioner and respondent No. 1 was dissolved with the intervention of Mahant Manjit Singh of Dera Nangali Sahib Digiana Ashram Jammu to which both parties consented and besides returning of dowry articles, respondent No. 1 was paid an amount of Rs. 2.00 lacs by petitioner towards full and final settlement of claim of maintenance of respondents. It is further submitted that respondent wife had agreed to deposit Rs. 1.00 lac out of the received amount in the name of her minor daughter and further agreed not to stake any claim for maintenance in future. Reference is made to mutual divorce deed executed between petitioner and respondent No. 1 on 16.01.2004. It is contended that since respondent No. 1 ceased to be the wife of petitioner and the claim of respondents for maintenance had been satisfied through the mode of lump-sum payment of Rs. 2.00 lacs made at the time of execution of the divorce deed, claim of respondents for maintenance, absolute or interim, was not entertainable. Per contra, learned counsel for respondents, while disputing the factum of divorce by mutual consent and payment of maintenance amount in lump-sum, contended that the marriage between the spouses could not be dissolved in the manner suggested. He further submitted that the burden of proof regarding the plea of divorce by mutual consent rested upon the petitioner and finding on such plea could be returned only after full-fledged enquiry in the proceedings under Section 488 CrPC. It is contended that meanwhile respondents could not be denied interim maintenance.