Item No.110 Suppl List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No.499/2024 YASMEENA AKHTER …PETITIONER(S) Through: Mr. G. N. Shaheen, Advocate. Vs. GHULAM RASOOL WANI …RESPONDENT(S) Through: Mr. G. N. Sofi, Advocate. CORAM:HON’BLE MR. JUSTICE SANJAY DHAR,JUDGE ORDER(ORAL) 11.07.2025 1. The petitioner has challenged order dated 25.07.2024 passed by learned Judicial Magistrate 1st Class, Bijbehara (hereinafter referred to as “the trial Magistrate”), whereby her application for grant of interim maintenance in terms of Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter for short “the Act of 1986”), has been rejected. 2. It appears that the petitioner had filed a petition under Section 4 of the Act of 1986 against the respondent before the learned trial Magistrate, in which she claimed that the respondent is her natural father. She further averred that she has been divorced and that marriage between her mother and the respondent has also been dissolved about 35 years ago when she was a minor baby. It was pleaded that presently the petitioner is residing with her mother who has married one Abdul 2 Salam Naikoo and because of this, most of her documents reflect the name of Abdul Salam Naikoo as her father. It was also pleaded that till 30.04.2013, the respondent was paying a monthly maintenance of Rs.2000/ to the petitioner and in a petition filed by her against the respondent under Section 488 of J&K Cr. P. C, a compromise was arrived at on 30.04.2013. It has been submitted that on 12.12.2012, the petitioner had entered into a wedlock with one Tariq Ahmad Goswami, whereafter liability to maintain her shifted to her husband but her marriage was dissolved on 22.10.2019. Thereafter according to the petitioner, the liability to maintain her fell on the shoulders of the respondent who is a man of substance working as an employee in NHPC, Uri, drawing a monthly salary of Rs.80,000. It was further pleaded that the respondent has now refused and neglected to pay any maintenance to the petitioner which prompted her to file the petition. 3. The petition was contested by the respondent by filing his reply in which he denied the relationship of daughter and father and claimed that he is not related in any manner to the petitioner. According to the respondent, after dissolution of his marriage with mother of the petitioner, she contracted second marriage with one Rehman Makroo and after the death of her second husband, she contracted third marriage with Abdul Salam Naikoo. It has been pleaded that during this period the petitioner was born and this fact has been admitted by her mother in an affidavit executed before the Judicial Magistrate 1st Class, Anantnag, on 20.09.2012 which was submitted in the case titled 3 “Yasmeena Akhter vs. Ghulam Rasool Wani” before Judicial Magistrate 1st Class, Bijbehara. A copy of the said affidavit has been placed on record. It has been submitted that in the earlier round of litigation, the respondent has clearly mentioned that the petitioner does not happen to be his daughter and he had paid an amount of Rs.50,000/ by way of a compromise to the petitioner on humanitarian grounds without admitting the relationship. It has been pleaded that father of the petitioner is Abdul Salam Naikoo and it is his liability to maintain her and the respondent being a stranger to the petitioner has no chance to inherit his property after his death, as such, in terms of Section 4 of the Act of 1986, the respondent has no obligation to maintain the petitioner. 4. The learned trial Magistrate, on the basis of pleadings of the parties and on the basis of the material on record, passed the impugned order thereby declining the interim maintenance in favour of the petitioner. While doing so, the learned trial Magistrate observed that the material on record prima facie suggests that the petitioner is not the daughter of the respondent. 5. The petitioner has challenged the impugned order by way of present petition on the grounds that the learned trial Magistrate has failed to appreciate that till 30.04.2013, the respondent was paying a monthly maintenance of Rs.2000/ to the petitioner during the pendency of petition filed under Section 488 of J&K Cr. P. C which was finally disposed of vide compromise order dated 30.04.2013 on account of marriage of petitioner with Tariq Ahmad Goswami. It has been 4 submitted that the learned trial Magistrate has failed to appreciate that petitioner after dissolution of her marriage has not remarried and she is unable to maintain herself. It has also been contended that the learned trial Magistrate has failed to appreciate that in the earlier round of litigation between the parties, the respondent had admitted the relationship between them. 6. I have heard learned counsel for the parties and perused record of the case. 7. Sub-section (1) of Section 4 of the Act of 1986 vests power with a Magistrate to pass an order of maintenance in favour of a divorced woman who has not remarried and is not able to maintain herself after the iddat period, against her relative as would be entitled to inherit her property on her death according to Muslim law. 8. In the present case, the petitioner claims that the respondent is her natural father, as such, after her death he is entitled to inherit share of her property and, therefore, in terms of Section 4 of the Act of 1986 he is obliged to pay maintenance to her. To prove relationship between the parties, the petitioner is relying upon the earlier proceedings initiated by her against the respondent under Section 488 of the J&K Cr. P. C which ended in a compromise between the parties, whereunder respondent had paid an amount of Rs.50,000/ to her. There is, however, nothing on record to show that in those proceedings the respondent had admitted his relationship with the petitioner and there is no finding of fact to this effect recorded by the Magistrate in those proceedings. The 5 petitioner has admitted that all her documents, which includes Aadhar Card, reflect name of Abdul Salam Naikoo as her father. 9. There is another material circumstance on record which, prima facie, falsifies stand of the petitioner. In para (1) of her petition before the learned trial Magistrate, she has pleaded that marriage between her mother and respondent was dissolved approximately 35 years ago when she was a minor baby but while making her statement before the learned trial Magistrate on 26.03.2024, she disclosed her age as 28 years, meaning thereby that she was not born when the marriage between respondent and mother of the petitioner had been dissolved. This supports the contention of the respondent that birth of the petitioner has taken place during currency of marriage of mother of the petitioner with Abdul Salam Naikoo who happens to be the third husband of her mother. 10. In the face of aforesaid material on record, the observation of the learned trial Magistrate that, prima facie, stand of the petitioner that she happens to be the natural daughter of the respondent is not substantiated from the material on record. Once it is, prima facie, shown that the respondent is not the natural father of the petitioner, he is not entitled to any share in the property of the petitioner. Thus, he cannot be burdened with the order of maintenance in favour of the petitioner in terms of Section 4 of the Act of 1986. 11. In view of the foregoing discussion, I do not find any ground to interfere in the impugned order passed by the learned trial Magistrate, 6 who, while passing the said order, has neither committing any illegality nor any irregularity that would warrant interference from this Court. The petition lacks merit and is dismissed accordingly. (Sanjay Dhar) Judge Srinagar 11.07.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No