FAROOQ AHMAD SHALLA Vs. MUNTAHA FAROOQ

JUDGEMENT

(1.) Brief facts of the case in nutshell are that one Mymoona Begum D/o Late Gh. Mohi -ud -din Rather R/o Rohama Rafiabad and respondent -Muntaha preferred an application under Sec. 488 Cr. P. C before the Court of Judicial Magistrate 1st Class, Baramulla seeking maintenance from the petitioner herein, which Court, by virtue of order dated 12.12.2009 granted interim maintenance in their favour. Feeling aggrieved of the said interim order, petitioner Farooq Ahmad Shalla filed a revision petition before the Court of Additional Sessions Judge, Baramulla, contending therein that Mymoona Begum (respondent No. 1 in the aforesaid revision petition), who was married with the petitioner, subsequently with the intervention of Auqaf Committee, Yaseen Colony, Arampora, was divorced and in this regard a Divorce Deed was executed on 06.10.2009 and she was paid the entire amount of Mehreen and other belongings by the petitioner herein. Learned Additional Sessions Judge, Baramulla, vide order date 26.04.2010, disposed of the revision petition with the following observations:

(2.) Aggrieved of orders dated 09.04.2014 and 27.06.2014, petitioner herein questions the same through the medium of present petition on the ground that both the Courts below have not appreciated the evidence as well as provisions of law and also erred in allowing the application filed under Sec. 489 Cr. P. C while enhancing the maintenance in favour of respondent herein with effect from the date of application. Learned counsel also argued that as per the provisions of law, the enhancement, if any, should have been made from the date of order. He further argued that the witnesses produced and the material placed before the trial Court made it clear that the monthly income of the petitioner is Rs. 4000 to 5000/only; the trial Court, therefore, erred in enhancing the maintenance. The petitioner as such cannot bear the enhanced amount of maintenance in view of his meager income. He, therefore, pleaded that the impugned orders are liable to be set aside. In support of his contentions, learned counsel also relied on a judgment of this Court rendered in case, captioned as, "Bansi Lal v/s. Pushpa Devi" reported in, 1981 KLJ 458 :, JKJ Soft JKJ/1595 wherein it has been observed that an order for alteration of allowance can be made only from the date of order under Sec. 489 Cr. P. C and not from the date of application seeking alteration.

(3.) On the other hand, learned counsel appearing for respondent stated at the Bar that he would not prefer to file any written objections, rather is ready to argue the matter. He, accordingly, argued that the trial Court in fact has not enhanced the maintenance from the date of filing of application; rather it has taken a lenient view by granting maintenance with effect from 1st January, 2013, although the application under Sec. 489 Cr. P. C was instituted on 16.05.2011. He, thus, pleaded that the trial Court has rightly allowed the application, and the order passed in this regard has rightly been upheld by the revisional Court.