Justice Rahul Bharti holds that statutory precondition under Section 488 not satisfied; quashes lower court orders directing father to pay monthly maintenance
In a judgment laying down the parameters governing entitlement to maintenance under Section 488 of the Jammu & Kashmir Code of Criminal Procedure, the High Court of Jammu & Kashmir and Ladakh at Srinagar has held that adult, unmarried daughters who are physically and mentally able-bodied cannot claim maintenance from their father under the said provision.
The ruling came in a petition filed by one Abdul Raheem Bhat, a senior citizen, assailing a 2019 order passed by the Judicial Magistrate 1st Class, Anantnag, which had directed him to pay ₹1,200 per month each to his two adult, unmarried daughters. The Sessions Court had upheld the Magistrate's order in 2021, prompting the petitioner to approach the High Court under Section 482 of the Code of Criminal Procedure, 1973 seeking invocation of its inherent powers.
The matter had an unusual background. In 2014, all three children of the petitioner, two daughters and a son, filed a joint petition seeking maintenance under Section 488 CrPC before the Magistrate. At that time, all of them were majors. The father, who considered himself dependent upon his son for subsistence, filed a counter-application later the same year, also invoking Section 488. That application was allowed in 2017, with the Magistrate holding that the senior citizen was unable to maintain himself and directing his son to pay ₹2,000 per month as maintenance.
Subsequently, in 2019, the Magistrate allowed the daughters’ plea, awarding them ₹1,200 each from the father, effective from the date of filing in 2014. The order did not extend relief to the son, who was also a co-petitioner in the original claim.
The High Court found both the Magistrate and Sessions Court orders legally untenable. Referring directly to the relevant statutory language, Justice Rahul Bharti extracted Section 488(1)(c) of the erstwhile J&K CrPC, which allowed a claim of maintenance by a child who has attained majority only if “such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself.”
Observing that the daughters were neither minors nor afflicted by any such condition, the Court held: “A bare perusal of section 488 would show that the two unmarried daughters of the petitioner, being of major age but suffering no physical/mental abnormality or injury rendering them unable to maintain themselves, were not supposed to invoke section 488 Cr.P.C. by any stretch of claim or reasoning…”
The Court found that this statutory condition had not been examined or appreciated by the courts below. Consequently, it concluded that both the Magistrate’s and Sessions Court’s orders were legally flawed: “…this legal aspect of section 488 was missed out by both courts below by passing the orders against the petitioner in favour of the respondents No. 1 and 2 and therefore both the orders are held to be illegal and are hereby set aside.”
Accordingly, the High Court allowed the petition and quashed the maintenance liability fastened upon the petitioner.
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