Firdous Ahmed Bhat vs Mst. Mehmooda

Syed Bashir-Ud-Din, J.—Through the medium of this petition 488 Cr.P.C. maintenance proceedings launched by wife and son of the

petitioner and presently on the file of the City Munsiff Magistrate Srinagar are prayed to be quashed u/s 561-A Cr.P.C. In term of the petition

allegation and submission of the Ld. Counsel the application has been taken cognisance of proceedings initiated and interim maintenance orders

passed without jurisdiction in as much as the proceedings in this case are not taken against the husband in the district where he resides or last

resided with his wife and the child. The counsel cites 1999 SLJ J&K 492 for the preposition that the allegations as given in the application u/s 488

Cr.P.C. are to be taken exfacie for exercise of jurisdiction by the Magistrate u/s 488(8) of Cr.P.C. while there can be no dispute with the

preposition that the jurisdiction of the Magistrate to take cognizance and proceedings in a monthly allowance application for maintenance of wife

and child under chapter 36 Cr.P.C. is governed by express provision of sub Section 488 Cr.P.C. , but for this jurisdic-tional sub Section to come

into play, the basic facts have to be determined.

The Ld. Counsel of his own is candid enough to state that the husband, (applicant before this court) has not objected thereto even though he has

filed objections and his version of the case before the Magistrate incorporates no plea or objection to question the jurisdiction of the Magistrate to

take the proceedings and pass the interim maintenance order. Certified copy of the application u/s 488 (Annexure-A) reveals that in para 3. a

mention is made that the wife during pregnancy was forcibly sent back to her parents where she gave birth to her minor son Respondent No. 2 ,

yet in the petition, it is no where mentioned that the wife and the child last resided with the applicant outside District Srinagar. It cannot be

conclusively held in absence of required facts and circumstances that the Magistrate Seized of 488 Cr.P.C. proceedings necessarily lacks

jurisdiction to take cognizance and initiate proceedings in this case. These basic facts have to be determined and adjudicated by the Magistrate

within the parameters of self contained procedure provided by Section 488 in Chapter XXXVI of Cr.P.C. relating to maintenance of wives and

child. It is not a case where the high court is to be give effect to an orders are required to be passed by this court to secure the ends of justice.

There is no merit in this petition which is dismissed. While dismissing the petition, it is pertinent to observe that the petitioner/husband is free to take

the plea of lack of jurisdiction and alleged disability of the Judicial Magistrates court seized of the matter to take 488 Cr.P.C. maintenance

proceedings in this case.

Mr. Malik Ld. advocate, submits that petitioner has moved transfer application before the competent forum and in case the proceedings arc

transferred to some other Magistrate then he should have option to move such Magistrate in the matter. Obviously, the above observation of the

court is applicable to the forum seized of the matter, in as much as, the question touches the basic jurisdiction of the Judl. Magistrate to take the

proceedings.

Send copy of the order to the concerned.

Disposed of.