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Moh'd Ramzan Dar Vs. Mst. Hameeda (27.01.1977 - JKHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1977CriLJ1682
AppellantMoh'd Ramzan Dar
RespondentMst. Hameeda
Cases ReferredQadir v. Mst. Zooni
Excerpt:
- .....maintenance to his wife.3. after recording some evidence the trial court accepted the case- of the wife and children and allowed maintenance in favour of the wife at the rate of rs. 60/- p. m. and for the two children at the rate of rs. 40/- each per month. the petitioner brought a revision before the chief judicial magistrate, srinagar against this order of maintenance who, however, rejected the same and maintained the order of the trial court.4. before me the learned counsel for the petitioner has submitted that both the orders passed by the trial court as well as by the first revisional court were illegal and have been passed without jurisdiction and therefore deserve to be quashed. his main argument was that during the trial the lower court had without jurisdiction and in illegal.....
Judgment:
ORDER

G.M. Mir, J.

1. The petitioner has come up in revision before this Court against the orders passed by Judge Small Causes Court, Magistrate 1st Class Under Section 488 Cr. P. C. and also against the order passed in revision by the learned Chief Judicial Magistrate. Srinagar.

2. The case of the respondent before the trial court was that she was legally wedded wife of the petitioner who has neglected her and has refused to maintain her and her two children. The petitioner resisted the application Under Section 488 Cr. P. C. on the grounds that he was prepared to maintain his wife and his children but as the respondent was not prepared to live with him, he was not bound to pay any maintenance to her or to the children, especially so when he was a Khanadamad and under custom was not liable to pay any maintenance to his wife.

3. After recording some evidence the trial court accepted the case- of the wife and children and allowed maintenance in favour of the wife at the rate of Rs. 60/- P. M. and for the two children at the rate of Rs. 40/- each per month. The petitioner brought a revision before the Chief Judicial Magistrate, Srinagar against this order of maintenance who, however, rejected the same and maintained the order of the trial court.

4. Before me the learned Counsel for the petitioner has submitted that both the orders passed by the trial court as well as by the first revisional court were illegal and have been passed without jurisdiction and therefore deserve to be quashed. His main argument was that during the trial the lower court had without jurisdiction and in illegal exercise of its powers closed the evidence of the petitioner and thus the final order passed by the trial Court was without jurisdiction, His further contention was that the petitioner being a Khanadamad was not bound to pay any maintenance to his wife or to his children as the wife was bound to reside with him. In order to understand these contentions, we may refer to certain orders passed by the trial court.

5. On the conclusion of the evidence produced by the wife in the trial court, the husband-petitioner was directed to produce his evidence. On 8-9-1975 one of his witnesses was present and his statement was recorded. He was given another chance to produce his remaining witnesses and the date was fixed as 22-9-1975. On that date none of his witnesses was present and the evidence as such was closed by the trial court. The petitioner went in revision against this order before the Chief Judicial Magistrate, Srinagar, who made a reference to this Court with the recommendation that the order of the trial court dated 22-9-1975 be set aside. This Court after hearing the parties vide its order dated 7-1-1976 accepted the reference and directed the trial court to issue appropriate process against Rahim Mir (the witness of the petitioner) and enforce his attendance in the court and directed it to record his statement. On 18-2-1976 when the application Under Section 488 Cr. P. C. came up again before the trial court the husband petitioner submitted an application to the effect that he may be permitted to give up Rahim Mir, his witness, and instead be permitted to get the statements of two other witnesses present in the court, recorded. The trial court, however, did not accede to his request and by its order dated 18-2-1976 ordered the closure of his evidence and thereafter heard the arguments and disposed of the application as stated above. In the meanwhile the petitioner-husband had come up before this Court in revision against the order of the trial court dated 18-2-1976 whereby his evidence was closed. The matter came up for admission before this Court on 5-3-1976 and as no good ground for admission was made out the petition was dismissed.

6. Mr. Kak appearing on behalf of the petitioner has vehemently contended that the order of the trial court dated 18-2-1976 closing his evidence was illegal and therefore the proceedings taken thereafter were also illegal and without jurisdiction and deserve to be quashed. In advancing this argument, Mr. Kak has obviously overlooked the order of this Court dated 5-3-1976 according to which the order of the trial court dated 18-2-1976 has been held to be sound and the revision against that order has not been admitted at all. As such this matter has been finally concluded by the order of this Court dated 5-3-1976 and cannot in ray view be reopened and examined afresh. This argument of Mr. Kak therefore cannot be sustained and is therefore overruled.

7. Mr. Kak next argued that the petitioner was a Khanadamad and therefore provisions of Section 488 Cr. P. C, were not applicable to him as the relations between the parties in these matters were determined by the custom they follow. His contention was that as an incidence of Khananishini or Khanadamadi he was not bound to pay any maintenance to his wife or to his children. This contention of the learned Counsel also does not appear to be sound. This is now settled that Section 488 Cr. P. C. was a statutory provision containing the law of the land and exists independent of personal law of the parties. It was as early as 1957 when in the case of Qadir v. Mst. Zooni reported in AIR 1957 J & K. 87 : 1957 Cri LJ 851 it was held as follows :

The Provisions of Section 488 Cr. P. C. are independent of personal law and they are also independent of any custom governing marriage between the parties. Under Section 488 Cr. P. C. only that husband who neglects or refuses to maintain his wife can be held to pay maintenance allowance.

To the same effect is another judgment of this Court which is a Division Bench case and is reported as 1971 J & K LR 462 : 1971 Cri LJ 1628. In that case also the, question as to whether the provisions of Section 488 Cr. P. C. were independent of the personal law or custom governing the parties came up for determination. The answer given by the Division Bench after carefully scrutinizing a large number of rulings on the point was in the affirmative. It was observed that the right of maintenance Under Section 488 Cr. P. C. was independent irrespective of the nationality or creed of the parties ; the only condition precedent of the possession of that right being in the case of a wife the acceptance of the conjugal rights. The right of maintenance Under Section 488 Cr. P. C. was a distinct and separate statutory right which has been conferred on the wife of a person irrespective of the caste, creed, nationality or religion to which she belongs, Somewhat a similar question arose in a matter before the Supreme Court also and it was in : 1970CriLJ522 that their Lordships of the Supreme Court approved the view taken by Patna High Court and some other High Courts to the effect that provisions Under Section 488 Cr. P. C. were applicable to all persons belonging to all religions and have no relationship with the personal law of the parties. These observations of their Lordships of the Supreme Court have apparently finally clinched the matter in favour of the contention that the provisions of Section 488 Cr. P. C. could not be overridden by any provision in the personal law of the parties or by existence of any custom to the contrary.

8. Mr. Kak has referred me to an earlier decision of this Court reported in 38 PLR (J. & K.) 104, On the facts of that case the Sessions Judge, Kashmir had made a reference to the High Court to quash the order passed by Munsiff Magistrate Srinagar ordering payment of Rs. 6/- per mensem by Khanadamad husband to his wife as her maintenance allowance on an application Under Section 488 Cr. P. C. On the facts of that case it was held by this Court that as the wife had refused to live with the husband she was not entitled to any maintenance allowance. The husband was a Khanadamad and on the basis of what has been said in that judgment, Mr. Kak's view was that the ratio decidendi was that khanadamads were not liable to pay any maintenance to their wives. From a close scrutiny of this judgment however it appears to me that it was not on the ground that the husband was a khanaudmad that the maintenance allowance was not allowed in favour of the wife but because on the evidence it was established that the wife had refused to live with her husband which, however, was not the case in the instant matter. From a perusal of the evidence recorded by the trial Court in the instant case it appears that though the petitioner in the beginning was brought as a khanadanmd but later he had come out of his father-in-law's house and settled in his own father's house along with his wife. The petitioner moreover has not been able to establish that his wife refused to live with him in spite of the demand to that effect. In fact the solitary witness produced by the petitioner has averred that the petitioner told him that he was contriving to see that his wife continues to live in her parents' house. The judgment reported in 38 PLR (J and K) 104 nowhere states that the provisions of Section 488 Cr. P. C. were not applicable in so far as a khanadamad was concerned. In my view if that view is taken of the ratio decidendi it will not be either in accordance With the spirit or the letter of that judgment. Moreover even if such a view was possible to be deduced from the judgment, it has now ceased to be good law in view of the Supreme Court ruling reported in : 1970CriLJ522 in which it has been clearly laid down that Section 488 Cr. P. C, was applicable to all persons irrespective of the personal law of the parties.

9. In this view of the matter the contentions raised by the petitioner should fail. The petition is, therefore, dismissed, and the rule is discharged. The petitioner will be liable to pay the costs throughout.


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