1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), the petitioner seeks
quashing of the order dated 27.04.2018 passed by learned 2nd Additional Sessions Judge, Jammu, by virtue of which revision petition filed by
respondent-Mehmoona Anjum against the order passed by JMIC, Jammu, has been allowed. In the petition, petitioner has stated that he has divorced
his wife-respondent on 9/8/2017 through whatsapp, so order of Court below is wrong. That divorce has been intimated to respondent, and he has filed
suit for injunction against respondent from interfering into his life, where she has appeared, so she has sufficient knowledge of Divorce.
2. I have considered the rival contentions.
3. Concluding paras of the order dated 27.04.2018 passed by 2nd Additional Sessions Judge, Jammu reads as under:-
“As far as arguments for the learned counsel for the respondent and even observation and finding of learned Magistrate as to suppression of
factum of divorce is concerned, the petitioner has categorically stated that she gained knowledge of the talaknama after filing petition under Section
488 Cr.P.C. From the perusal of record it is revealed that the petition came to be filed on 05.09.2017 and though as per interim order dated 23.08.2017
recorded in the civil suit filed by the respondents in the court of learned Sub Judge, Jammu as advocate, namely, NadeemBhat appeared on behalf of
the petitioner herein but without any Vakalatnama and therefore, again it is triable question as to whether the petitioner had knowledge of the
talaknama or not as mere annexure of some illegible whatsapp text without proof of the same is not sufficient to draw any concussion against the
petitioner. Otherwise also mere non-disclosure of a particular fact does not by itself defeats the statutory right of a party unless it is established that
the party acted malafidely and the disclosure of the fact itself without any further probe would lead to the passing of order against such party. At the
cost of repetition the legality of the talak is still to be proved by the respondent and therefore, even if the petitioner was having knowledge of the said
pronouncement and would reveal before the Magistrate, it would not make any difference and therefore, on this count also the right of the petitioner
cannot be defeated.
Hence, in view of discussion made herein above, I am of the considered opinion that the impugned order suffers from serious illegality and therefore,
the revision petition is allowed and impugned order is set aside with the direction to the Court below that quantum of interim maintenance be
determined and appropriate order in accordance with law be passed in this regard after hearing both the parties. Parties are directed to appear before
learned Court below on the date fixed in the main petition under Section 488 Cr.P.C. Copy of this order be sent to the learned count below for
compliance and information. Revision petition file be consigned to records after due compilation.â€
4. From bare perusal of above said order, it reveals that respondent-Mehmoona Anjum filed a petition under Section 488 Cr.P.C before the Munsiff
1st Class JMIC, Jammu, on the ground of neglect by her husband-petitioner herein. Along with the said petition, an application for interim maintenance
was also filed. The Petitioner resisted the said petition on the ground that he has already divorced the respondent-Mehmoona Anjum and the same has
been communicated to her on Whatsapp. Petitioner-husband further averred that marriage already stand dissolved before filing of the said petition and
despite the knowledge of the divorce, his wife/ respondent filed the aforesaid petition under Section 488 Cr.P.C for grant of interim maintenance. The
said  application for interim maintenance came to be dismissed by the Munsiff 1st Class JMIC, Jammu on the ground that petitioner-respondent
herein has been duly divorced by the respondent-petitioner herein and the divorce deed has also been duly communicated to her through whatsapp.
5. The respondent-Mehmoona Anjum against the aforesaid order passed by Munsiff, Jammu filed a criminal revision before the 2nd Additional
Sessions Judge, Jammu. The revisional Court after hearing the learned counsel for the parties allowed the revision petition and set aside the order of
Munsiff, on the ground that in view of the Judgment of Constitution Bench of Hon’ble Supreme Court in case Shayara Bano and ors. Vs. Union
of India and ors., (2017) SCCR 845, ‘triple-talak’ is un-constitutional, so order of Magistrate is bad. Revisional Court further relied upon another
judgment of the Hon’ble Apex Court reported in case Shamim Ara vs. State of UP (2002) 7 SCC 518; and judgment of this Court in case Zubaida
Akhter and another vs. Tariq Mehmood Bhat 2017 (4) JKJ 110, wherein it is held that such like divorce is valid when it is given by husband only for a
reasonable cause and secondly, it must be preceded by an attempt to reconciliation between husband and wife by two arbiters, one chosen by husband
from his family and one by wife from her family. There is, thus, no infirmity of law in the order of Court below. Factual matrix of defense cannot be
appreciated in this petition.
6. Further the plea of divorce is a fact, which husband is required to prove during trial of proceeding. At initial stage, the Divorce Deed cannot be
considered as valid proof for denying the interim maintenance.
7. In view of above, this petition is dismissed.
