Jammu & Kashmir High Court - Srinagar Bench
Kismat Jan Alias Maliha vs Hilal Ahmad Malik on 17 October, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Crl R No. 1/2024
Reserved on: 08.09.2025
Pronounced on : 17 .10.2025
Uploaded on: 23.10.2025
Whether the operative part or
full judgment is pronounced Full
KISMAT JAN ALIAS MALIHA
...PETITIONER (s)
Through: Mr. Shehayar, Advocate vice
Mr. Nissar Ahmad, Advocate.
VERSUS
HILAL AHMAD MALIK
Through: Mr. I. Sofi, Advocate.
...RESPONDENT(s)
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.
JUDGMENT
01. The present Revision petition has been filed by the petitioner herein
against the order dated 2nd of November 2023, passed by the Court of
learned Principal Judge Family Court, Srinagar.
02. Facts emerging from the record reveals that the petitioner herein had
instituted maintenance proceedings before the court of 3rd Additional
Munsiff, Srinagar, under Section 488 Cr.P.C. on 16.02.2011 against the
respondent herein, being his minor daughter and had averred therein that she
was born to the respondent's first wife and, since her birth, had been ignored
and not maintained by the respondent herein.
03. In the said proceedings initially an amount of ₹1,200/- as maintenance
was ordered to be paid by the respondent herein to the petitioner herein
which was subsequently enhanced to ₹1,700/- per month pursuant to an
order dated 09th of April 2013 passed by the said Court upon an application
filed by the petitioner herein for enhancement of maintenance and thereafter
upon another application filed by the petitioner herein before the same Court
on 11th of August 2014 under Section 489 Cr.P.C., seeking further
enhancement of the said maintenance amount was sought which application,
after contest by the respondent herein, came to be allowed, and the
respondent herein was directed vide order dated 22.05.2018 to pay an
enhanced amount of ₹5,000/- per month to the petitioner herein as
maintenance with effect from the date of filing of the application.
04. Aggrieved by the said order dated 22nd of May 2018, the respondent
herein filed a Revision petition before the Court of the Principal Judge,
Family Court, Srinagar, which court in terms of the impugned order dated
2nd November 2023, allowed the application, holding that the payment of
maintenance to the petitioner herein by the respondent herein could not
continue beyond the age of majority as the petitioner herein having attained
the same.
Heard learned counsel for the parties and perused the record.
05. Perusal of the record in general and the impugned order in particular
would reveal that the court below has allowed the respondent's plea that the
petitioner is not entitled to maintenance after having attained the age of
majority, while misplacing reliance on various judgments of this Court as
well as of the Apex Court referred to in the impugned order, however has
overlooked the true scheme and object underlying the provisions of Section
488 Cr.P.C. in that, the said provision have to be read and interpreted so as
to advance the justice and to protect, inter alia, an unmarried daughter who
is unable to maintain herself, notwithstanding the fact that she has attained
majority as the said provision besides having been enacted to advance cause
of justice has also to provided to protect an unmarried daughter from leading
a life of destitution and starvation, as the scheme of said maintenance
provisions contained in the Code of Criminal Procedure makes it evident
that these provisions are intended to serve a social purpose with an object to
provide social justice to the destitute wives, children, and parents who are
neglected by the person under an obligation to maintain them. Though the
said provision does stipulate that maintenance may not be granted to a
daughter after she has attained majority, yet the said provision has to be read
in conjunction with the main provision inasmuch as with the aforesaid object
and is also further subject to proof that a major daughter upon attaining such
majority is able to maintain herself now and also that she is not suffering
from any physical or mental infirmity, as well.
06. The trial court, seemingly, has only referred to the provisions of law
contained in Section 488 & 489 Cr. P.C, inasmuch as the judgements
referred therein, without critically examining the application in order to
arrive at a reasonable and just conclusion that the petitioner herein is
disentitled to receive maintenance from the respondent herein after having
attained majority as evidence whatsoever has been produced by the
respondent herein before the court below to establish or justify that the
petitioner herein, despite having attained majority, is physically and
mentally sound and able to maintain herself, or possesses sufficient means
and resources for her sustenance. The court below appears to have decided
the matter in a casual and mechanical manner, without due appreciation of
legal position applicable to the case.
A reference in this regard to the judgment passed by the Coordinate
Bench in the case titled "Tariq Mehmood Bhat v. Zubaida Akhtar &
Anr" passed in CRM(M) No. 139/2020 dated 02.09.2021, would be relevant
wherein para 14 and 15, the following has held that:-
"14. Section 488 Cr. P. C., as enacted, has to be read and construed
having regard to its beneficent nature and cause of social justice
embedded therein. Where a son or daughter reaches the age of
majority, it does not mean that as from that date he or she has to
starve. That is not the law. It only means that as from the age of
majority, the law takes note of the fact that he has capacity to earn. But
if he or she still depends on his or her mother either for study or for
shelter, that fact will have to be taken into account, when a mother (or
wife) is given maintenance. It, therefore, follows that all persons
eligible to claim maintenance must be unable to maintain himself or
herself.
It is not understandable that the child who even though attained the
age of majority is not given any maintenance but the one who looks-
after him or her gets it. The emphasis is on the phrase "neglect and
refusal to maintain" and inability of the child to maintain itself not on
the reason for inability to maintain. Therefore, simple and plain
meaning has to be assigned as is implied in the provision. The
provision is aimed at not only to remedy the neglect and refusal to
maintain but also to prevent the evil consequence of such neglect or
refusal to maintain. That being so, it cannot be so the intention of the
legislation that a girl child who first develops a mental injury on
account of neglect or refusal so as to fall within the exceptional clause
of section 488 (1)(c) of Cr. P.C. and then the preventive measures
would operate. Therefore, the word "neglect" used in the provision not
only means a tacit non-performance of such a duty by father but also
embraces the duty of a father to maintain his unmarried major
daughter. It clearly postulates not only the existence of absolute nature
of such duty and responsibility of a father, but also corresponding
legally enforceable right of such a daughter. It is, thus, abundantly
clear from the aforesaid discussion, that when an unmarried major
daughter, taking education in the college, claims maintenance, taking
education in the college, what is required to be proved is the financial
dependence of the mother. As the word "Neglect" has not to be
construed in a limited sense but in a broader prospect and needs of the
children includes affection, due care, education etc. When a child
suffers neglect in context with all these basic things, she is sure to be
emotionally hit and amounts to mental injury reflecting upon her
mental faculty. This also causes an intense mental suffering where
children are left to suffer mental suffering and then permitted to claim
maintenance from her father who is under statutory obligation to
maintain them who are unable to maintain itself would amount to
wilful and unjustifiable infliction of pain and would amount to put
clogs on the word "maintenance" which itself is very eloquent to
express that it is a summary remedy given to serve the wife, children,
parents so that they may not go astray and oppose to the very purpose
for which this enactment is made. In other words, section 488 of the
Code is designed to prevent vagrancy and destitute, and provides
summary and speedy summary. It starts with the word "maintenance".
The very meaning of maintenance is not to provide breathing spur to
live but includes clothes, food education etc.
15. This leads to the irresistible conclusion that any child who has
attained majority does not automatically cease to claim maintenance
and allowed to starve if he is unable to maintain himself/herself. So
long as the major unmarried daughter is despondent upon the mother,
particularly pursuing study in the college and unable to maintain
herself, would be entitled to claim maintenance from her father, cannot
be allowed first wait to suffer mental injury so as to come within the
ambit to sub-section (1) (c) and then ask for maintenance."
07. For what has been considered, observed, and analysed hereinabove,
the impugned order is held to be legally unsustainable.
08. Accordingly, the instant petition succeeds, and the impugned order is
hereby set aside and the respondent herein is directed to continue to pay
maintenance to the petitioner as granted in terms of order dated 22 nd of May
2018, passed by the Court of the 3rd Additional Munsiff (Judicial Magistrate
1st Class), Srinagar. However, the respondent herein shall be at liberty to
seek modification or recall of the said order, in case circumstances
necessities so.
08. Disposed of.
(Javed Iqbal Wani)
Judge
SRINAGAR
17.10.2025
Showkat Khan
