Muslim Wife Can't Be Denied Maintenance When Factum Of Divorce Not Properly Established: J&K&L HC

We definitely need to note most seriously that in a very positive, progressive, pragmatic and powerful judgment titled Zahoor Ahmad Dar Vs Jameela Bano & Another and cited as CRM(M) No. 45/2021 that was reserved on September 11, 2023 and then finally pronounced on September 20, 2023, the Jammu and Kashmir and Ladakh High Court while speaking out most vocally in favour of legal rights of Muslim wife has unequivocally ordered a Muslim man to maintain his wife till the factum of divorce, as had been claimed by him, is established. It deserves mentioning here that Muslim personal law does not contemplate granting maintenance to a divorced wife. The Single Judge Bench comprising of Hon'ble Mr Justice Rajnesh Oswal however clarified that wife cannot be asked to live her life without any maintenance from her husband when the issue of dissolution of marriage is not proved.

- SANJEEV SIROHI

While spelling out its stand most clearly, correctly and courageously, the Bench took the premise that denying maintenance would defeat the purpose of Section 488 of the CrPC (Pari Materia with Section 125 CrPC), which aims to provide temporary financial support to women during marital disputes. It cannot be glossed over that the High Court noted that petitioner (husband) had presented contradictory statements inasmuch as he claimed to have divorced his wife on one hand and stated that she had left their home on her own, on the other. Thus the Court had just no difficulty in concluding that the issue of dissolution of marriage is not properly proved and the Trial Court was right in ordering the petitioner to provide a monthly sum of Rs 7000 to respondent No.1 (wife).

No doubt, the Court rightly underscored that the purpose of Section 488 of CrPC which deals with maintenance, would be defeated if wives were denied maintenance solely based on unproven claims of divorce. To put it differently, the Court stated clearly pointing out that, "It shall defeat the whole purpose of Section 488 of Cr.P.C. Taking into consideration the object of the said provision, the concept of interim maintenance was evolved by the Supreme Court in 'Savitri v. Govind Singh Rawat [(1985) 4 SCC 337]'." Resultantly, we thus see that the Court found no abuse of process of law which could warrant the indulgence of the Court, Thus it dismissed the plea.