Jammu & Kashmir High Court - Srinagar Bench
Abdul Gani Bhat vs Afroza And Others on 7 April, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Pronouncement on: 07/04/2021
CRMC No. 19/2019 [CRM(M) No. 39/2019]
CrLM No. 200/2019 [01/2019]
CrLM No. 534/2019
Abdul Gani Bhat
Appellant(s)
Through: -
Mr. Sofi Manzoor, Advocate
V/s
Afroza and Others
.....Respondent(s)
Through: -
Mr Gulzar Ahmad Bhat, Advocate.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
JUDGEMENT
1. Inherent power is being invoked by the petitioner for quashment of
proceedings instituted by the respondents herein for grant of
maintenance under Section 488 Cr.PC, as also order dated 16.11.2018,
passed by the court of Judicial Magistrate 1 st Class, Budgam, in terms
whereof interim maintenance of Rs. 4,000/= each has been granted to
respondents 2 & 3 herein to be payable by the petitioner herein.
2. The instant petition is filed by the petitioner on the premise that
respondent No. 1 is the wife and respondents 2 & 3 being daughter
and respondent 4 being son of the petitioner and that the said
respondents under misrepresentation of facts have filed maintenance
application under Section 488 Cr.PC before the Judicial Magistrate,
Budgam, (for brevity the court below) wherein, an interim order dated
16.11.2018 (for brevity the impugned order) has been passed.
3. Maintenance proceedings are stated to have been instituted despite a
decree of civil court obtained by the petitioner herein for restitution of
conjugal rights against the respondent No. 1 herein.
CRMC No. 19/2019 [CRM(M) No. 39/2019]
4. In para 5 of the instant petition, petitioner herein has referred to reply
filed in opposition to Para 10 of the maintenance petition before the
court below and has reproduced the same, which being relevant and
germane herein for disposal of the instant petition is being extracted in
extenso and reproduced here under: -
"in reply to para No:-10, it is submitted that in view of
the above reply the petitioners are not entitled to claim
any maintenance from the respondent as the petitioners
have withdrawn from the company of the respondent
besides the petitioner 02-04 are majors, as such cannot
claim any sort of maintenance from the respondent.
However, despite the above reply the respondent is
making bona fide offer to the petitioners to live with him
in his home as happy family life and is ready to provide
all the maintenance to the petitioners for securing the
prosperous life and future of the children."
5. It is being further stated that the maintenance application filed by the
respondents herein is not bonafide one, but has been filed with
malafide intentions to deprive the petitioner herein of love and care of
the children and besides the consortium with the wife. The order
impugned is stated to be non-est in the circumstances and is sought to
be quashed on the ground that the court below was required to decide
the offer made by the petitioner, first.
6. Heard learned counsel for the parties and perused the record.
7. Learned counsel for the petitioner while making his submissions
reiterated contentions raised and grounds urged in the petition,
whereas, per contra, counsel for the respondents resisted and
controverted contentions raised and grounds urged by the learned
CRMC No. 19/2019 [CRM(M) No. 39/2019]
counsel for the petitioner and sought accordingly, dismissal of the
petition.
8. The fundamental ground urged by the petitioner for seeking
quashment of maintenance proceedings instituted by respondents
herein have two limbs: one; that the maintenance proceedings are not
maintainable in presence of the decree obtained by the petitioner
herein for restitution of conjugal rights against the respondent No. 1
herein and that the impugned interim order of maintenance is bad, in
that, the said interim maintenance could not have been granted in law
in favour of respondents 2 & 3 being major daughters.
9. In so far as the first limb of the ground that the maintenance
proceedings would not lie against the petitioner in presence of decree
for restitution of conjugal rights, it is noticed that the said issue is yet
to be determined and adjudicated upon by the trial court in the main
proceedings pending before it and for that purposes may require a full
dressed enquiry/trial to be undertaken thereto and said issue therefore,
cannot be addressed and adjudicated upon by this court in exercise of
inherent power. In so far as the second limb of the ground is
concerned, law is no more re-integra in this regard. A Division Bench
of this court in case titled as "Lubna Mehraj & Ors. Vs. Mehraj-
ud-Din Kanth reported in SLJ 2003 (II) 516", while over ruling the
judgement passed in case "Mala Sidiq Vs. Dishada Banoo", at Para
25 has ruled as under: -
"25. In view of all what has been discussed and observed
above, the judgment in Mala Sidiq V Dilshada Banoo
does not lay down the correct law and is, therefore,
hereby over-ruled. We hold that major unmarried
daughters are entitled to claim maintenance from their
father in summary proceedings under section 488 of the
Code of Criminal Procedure"
CRMC No. 19/2019 [CRM(M) No. 39/2019]
The Apex court as well incase titled as "Abhilasha Vs. Parkash &
Ors., reported in AIR 2020 SC 4355, has observed and noticed at
Para 26 as follows: -
"26. Muslim Law also recognizes the obligation of father
to maintain his daughters until they are married.
Referring to Mulla's Principles of Mohammedan law,
this Court in State of Haryana and Ors V. Santra (smt.),
(2000) 5 SCC 182: (AIR 2000 SC 1888) in paragraph 40
held: -
"40. Similarly, under the Mohammedan Law, a father is
bound to maintain his sons until they have attained the
age of puberty. He is also bound to maintain his
daughters until they are married. [See: Mulla's
Principles of Mohammedan Law (19th Edn.) page 300]..
...............................
10. Viewed in the light of the judgement of this court, the Apex court
noticed above and also what has been noticed, observed, considered
and analyzed hereinabove the petition is found without any merit and
is, accordingly, dismissed, along with all connected CrLM(s).
(Javed Iqbal Wani)
Judge
SRINAGAR
07/04/2021
"Ishaq"
i. Whether the Order is speaking? Yes.
ii. Whether the Order is reportable? Yes.
