MUZAFFFAR AHMAD THOKER Vs. SHAHEENA AKHTER

JUDGEMENT

(1.) The facts of the instant petition chiseled in a nutshell are that the respondents filed a petition under Section 488 Cr. PC before the Court of learned Chief Judicial Magistrate, Shopian, in which interim maintenance was directed to be awarded in their favour. Aggrieved by the said order, the petitioner assailed the same in a revision before the Court of the learned District and Sessions Judge, Shopian, chiefly on the ground that the respondent No. 1, a divorcee cannot file and maintain a petition under Section 488 Cr. PC. However, during the pendency of the revision petition both the parties entered into an amicable settlement in which it was agreed that the petitioner herein will deposit an amount of Rs 20000/- in the Court which in turn shall be paid to the wife and an amount of Rs. 10,000/- will be paid to her within a period of one month from the date of the order. The compromise also stipulated that the parties shall remarry and they will live as husband and wife in a separate dwelling. The learned Sessions Judge recorded the statements of the parties, sent down the file to the Court of the learned Chief Judicial Magistrate, who disposed of the petition Under section 488 Cr. PC as settled. The respondent wife thereafter filed an application before the Court of learned District and Sessions Judge seeking the execution of the aforesaid compromise on the ground that the petitioner did not act upon the compromise and denied to remarry the petitioner. The petitioner, however, paid the amount settled in the compromise to the learned counsel representing her. The respondent filed another application before the Court of the learned District and Sessions Judge, with the prayer that the compromise be set aside. The learned District and Sessions Judge, vide his order dated 10.12.2015, set aside the compromise and revived the revision petition filed by the petitioner. Dissatisfied with the said order, passed by the learned District and Sessions Judge, Shopian, in file No. 347/M, the petitioner has challenged the same in the instant writ petition and has prayed that the said order, does not meet the ends of justice and is, therefore, liable to be set aside.

(2.) The respondent-wife has resisted the petition of the petitioner, inter alia, on the grounds that since the petitioner failed to pay the amount of maintenance, directed to be paid to her under the compromise and refused to execute afresh Nikah Nama under the plea that she is already divorced and a triple talaq has been pronounced on her, therefore, it was incumbent on her part to perform "Halala", i.e. to marry some other person before she could remarry him. The omissions and commissions on the part of the petitioner after the execution of the compromise explain that the petitioner never intended to act upon the terms and conditions incorporated in the compromise but to stall the payment of maintenance.

(3.) It is further pleaded that from 18.5.2013 till 17th August, 2017, the petitioner has paid an amount of Rs. 12,000/- only as maintenance in favour of the respondent No. 2, who is a student of class Ist. This attitude and behavior of the petitioner speaks volumes about the falsity of the instant petition. After the execution of the compromise dated 24.04.2015, the petitioner failed to deposit the agreed amount before the Court and thereafter denied to execute a fresh Nikah Nama on the ground that the petitioner has pronounced a triple Talak upon her on 24.07.2013 and under the Shariah Law, a fresh Nikah cannot be performed without "Halala".