Excelsior Correspondent
Srinagar, Sept 13: High Court has maintained that the husband is duty bound to maintain wife unless the divorce is proved by him and upheld the trial court orders of interim maintenance.
Justice Sanjay Dhar in a well elaborated verdict whereby the trial court order for grant of maintenance was passed in favour of the wife said there is no ground to interfere with the order of the Trial Magistrate.
Justice Dhar recorded that unless the petitioner-husband discharges his burden of showing that his relationship with his wife has ceased to exist, he cannot wriggle out of his liability to maintain her.
The husband, court added, can do so only after trial of the case and till such time, he is obliged to pay interim maintenance to respondent-wife. “This Court does not find any ground to interfere with the impugned orders passed by the trial Magistrate and the Revisional Court whereby interim maintenance has been granted in favour of the respondent-wife. The petition is, accordingly, dismissed as being devoid of merit”, Justice Dhar concluded.
The order passed by Chief Judicial Magistrate, Budgam was challenged before the High Court whereby, in a proceeding the Magistrate has granted a monthly interim maintenance to the tune of Rs 2000 to the wife. Challenge was also thrown to the order passed by Sessions Judge Budgam, whereby, CJM’s order of maintenance was challenged by the petitioner-husband which was upheld by the Sessions Judge.
The petitioner-husband has challenged the impugned orders passed by the courts below primarily on the ground that a divorced Muslim wife is not entitled to maintenance as such, even interim maintenance cannot be granted in her favour.
So far as respondent-wife is concerned, she claims that the marriage between her and the petitioner is still subsisting whereas the petitioner claims that the marriage stands dissolved in terms of communication dated 10.01.2019 of Anjuman Sharie Shiaan, J&K. Both the courts below have held that the question whether he had divorced her wife can be determined only after recording of evidence to be led by both the parties during the trial of the case.
“It is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the divorce has been communicated to the wife”, read the judgment.
“Besides this, the very communication of the divorce to her is in dispute and there is nothing on record to even prima facie show that the Talaq Nama has been conveyed to her as such the arguments in support of various law points are not applicable to the facts of the instant case”, Justice Dhar recorded.
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