GURMEET KOUR Vs. AMRIK SINGH

JUDGEMENT

(1.) The petitioner has filed an application under Section 488, Cr.P.C. for grant of maintenance against the respondent in the Court of learned Judicial Magistrate Sub-Judge. Jammu. Along with this application she also filed an application for grant of interim maintenance. Respondent in his objections admitted the factum of marriage, however, contested the entitlement of the petitioner to the interim maintenance on the ground that she was leading adulterous life. Learned Magistrate accepted the plea of the respondent and has dismissed the application of the petitioner for grant of interim maintenance being of the view that the ground taken by the respondent if ultimately proved would disentitle the petitioner to any maintenance at all, therefore, interim maintenance cannot be allowed. Aggrieved by the dismissal of the application, the petitioner-wife has filed this revision.

(2.) I have heard the learned counsel for the parties and gone through the record of the case thorougly.

(3.) Contention of the learned counsel for the petitioner is that the learned trial Magistrate was not justified in dismissing the application of the petitioner for grant of interim maintenance simply on the ground that respondent in his objections had alleged that the petitioner was living adulterous life. According to him the fact of adultery could only be established by the respondent by leading evidence during the trial. He submits that the trial has yet to begin and at the stage of granting of maintenance, the Magistrate could not take into consideration, what the ultimate decision of the application would be for deciding the question of grant of interim maintenance. The petitioner was only to show prima facie that she is wife of the respondent and respondent is neglecting to maintain her making her survival difficult. In the present case, according to him the marriage between the parties has been admitted by the respondent and in the circumstances of the case, the petitioner being a destitute lady is entitled to be granted interim relief. On the other hand the contention of the learned counsel for the respondent is that in view of the law laid down in case titled Salmant Maish v. Neena reported in 2003 (Suppl) JKJ 540 by this Court, the petitioner is not entitled to be granted interim maintenance. He submits that in case he is made to pay interim maintenance to the petitioner and ultimately the succeeds in proving the fact of adultery against the petitioner he would not be able to recover back the amount paid way of interim maintenance.