Excelsior Correspondent
Srinagar, Mar 4: High Court today upheld the Sessions Court order setting aside order of Chief Judicial Magistrate (CJM) who had granted interim maintenance to woman who as per her husband had been divorced by him.
Justice A M Magrey, was hearing a petition filed by one Masrat Begum challenging the order of the Principal Sessions Judge, Kupwara in which the order of Chief Judicial Magistrate (CJM), Handwara was set aside. The CJM had granted interim maintenance of Rs 1000 per month to Masrat Begum whose husband, Abdul Rashid Khan, claims that he had divorced his wife before filing maintenance proceedings against him by Masrat Begum.
“The question of interim maintenance would arise only if the marriage is proved to be subsisting in accordance with the Shariah. In the instant case …, husband has taken the plea that he has divorced the petitioner (wife) prior to the filing of the application for maintenance and, therefore, the relationship, on the basis of which the wife (petitioner) claims the maintenance, does not exist. Validity or otherwise of the divorce can be determined only in a regular civil suit, not in a summary proceedings under section 488Cr.P.C.” Justice Magrey observed.
“It is matter of common knowledge that under Muslim Personal Law a divorcee is entitled to maintenance and provisions during the period of Iddat only and this maintenance is different from what is provided under Section 488 Cr.P.C, in as much as the grant of maintenance under the said section is hedged in certain limitations”, the Judgment reads.
Justice Magrey further observed, “I deem it necessary to mention here that Muslim personal law is not in the form of any legislative enactment. The state legislature has not enacted any law concerning been ordained in the Quran and Sunna, i.e., the practices and precedents/precepts of the Prophet(SAW), as expounded by Ijmaa, Qiyas and Ijtihad by the great scholars of Isalm who have been well versed with the knowledge of the religion. The jurisprudence thus developed is popularly known as Fiqh.”
The judgment reads: “It is the settled law that it is not within the competence of the court to interpret the Quranic verses or the precepts of the Prophet (SAW) without knowing the context in which they were made. It falls within the domain of the scholars (Muhadisine and Muffasirine), who have full knowledge of the religion and , therefore, are experts in the field, to interpret the Quranic verses and/or the precepts of the prophets(SAW).”
“It is otherwise well settled judicial principle of the job of the experts should be left to them and that the courts should not substitute their own opinion for that of the experts on a subject”, the HC judgment reads.
The court directed: “In order to justify the grant of interim maintenance, the applicant has to establish a prima facie case, that she is entitled to maintenance. In order to arrive at such a conclusion the Magistrate is required to have some semblance of material on record in the shape of evidence.”
Justice Magrey observed that the Session’s Judge Kupwara has rightly directed the CJM Handwara to consider the matter afresh on the basis of evidence of summary nature to produced by the parties and pass fresh orders in accordance with law. “Therefore, the judgment of the revisional court, stating the correct position of law, does not warrant any interference under the inherent powers of this court. The CJM is directed to explore the possibility of deciding the matter within a period of 2 months from the date of this order”, the judgments reads.
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