SAFIYA AND ANOTHER Vs. SHAFIQ AHMAD MIR

JUDGEMENT

(1.) Aggrieved by the order dated 30.11.2015 of the Ld. Sessions Judge, Pulwama passed in file No. 15/Revision and the judgement of the Court of the Ld. Chief Judicial Magistrate, Pulwama dated 15.05.2014 passed in file No. 29/N, the petitioners have challenged their virus in this petition filed under section 561-A CrPc on the grounds, inter-alia, that the petitioner No.1 solemnized a marriage with the respondent herein. She gave birth to a son that is, the petitioner No.2 from the ribs of the respondent. On their neglect by the respondent, the petitioners were forced and coerced to take refuge in the parental home of the petitioner No.1 where she has been living along with her son for a long time by now. The petitioner No. 1 filed an application under section 488 CrPc, 1973 on her behalf and on behalf of the minor son for the grant of maintenance in their favour. The trial court allowed the said application vide Order dated 15.05.2014 and dismissed the application in so far as the petitioner No.1 is concerned by holding that the petitioner has been divorced by the respondent herein. The Trial court, however, awarded a monthly allowance of Rs. 3000/- as maintenance, in favour of the petitioner No.2. Dissatisfied with the order of the trial court the petitioner assailed the same in a revision filed before the Ld, Court of Sessions at Pulwama, which came to be dismissed by an order dated 30.11.2015.

(2.) The petitioner has challenged the order dated 30.11.2015 of the Ld. Sessions Judge, Pulwama and that of the trial Court chiefly on the ground that the entire case revolves round the plea whether the relationship of the petitioner No.1 and the respondent has ended by a valid divorce and if not what shall be its effect? The petitioner has pleaded in the petition that the alleged deed of divorce does not make any mention of the divorce but proceeds on an assumption that there exists a divorce. The parties belong to Sunni Sect and under the Islamic law a particular mode of divorce has to be adopted before the same can become effective and binding. The deed of divorce does not in law satisfy the requirement of a valid divorce. Under the Islamic Law a Muslim husband does not have an absolute, unfettered or uncontrollable right to divorce his wife. There are inbuilt limitations. To do so is not in the sweet will of a Muslim husband. The Deed of divorce executed does not satisfy these requirements and, is therefore, totally invalid. The respondent labors under an erroneous belief that he has divorced the petitioner which is a fallacious one. The courts below have not appreciated the context in which a Muslim husband can divorce his wife. The Courts below have acted in contravention of the judgements of the Apex Court delivered on the subject and, therefore, both these orders require to be set aside.

(3.) Heard and considered.