Khursheed Ahmad Ganie vs Tahira & Others

Sanjay Dhar, J

1) Petitioner has challenged order dated 12.10.2021, passed by learned Chief Judicial Magistrate, Ganderbal, in a proceeding under Section 489 of Jammu and Kashmir Code of Criminal Procedure initiated by respondents against the petitioner seeking enhancement of maintenance.

2) It emerges from the record that respondents, who happen to be the wife and children of petitioner, filed a petition under Section 488 of J&K Cr. P. C against the petitioner, which came to be decided by the learned Magistrate on 31.10.2006 and a monthly maintenance of Rs.3000/ was awarded in favour of each of the respondent. It seems that respondent No.1 filed an application under Section 489 of J&K Cr. P. C seeking enhancement of maintenance allowance on the ground that the salary of the petitioner, who is a Government employee, has undergone hike. Vide order dated 22.03.2012, the maintenance allowance was enhanced to Rs.6000/ per month in favour of each of the respondent. Thereafter another application came to be filed by the respondent No.1 seeking enhancement of monthly allowance, which came to be decided vide the impugned order dated 12.10.2021 and the monthly maintenance has been enhanced to Rs.8000/ per month in favour of each of the respondent. As per the impugned order, the petitioner herein despite notice did not participate in the proceedings and the learned Trial Magistrate on the basis of exparte evidence led by respondents herein passed the impugned order.

3) Petitioner has challenged the impugned order on various grounds, particularly on the grounds that respondents No.2 to 4 are major; that the learned Magistrate while passing the impugned order has not taken into account the fact that the petitioner is an employee of lower level drawing a meagre salary and that petitioner has to liquidate the loan which he has taken to run the family affairs.

4) I have heard learned counsel for the petitioner and perused the record.

5) As is clear from the impugned order, the same has been passed in exparte as according to the trial court, petitioner did not participate in the proceedings. It is on account of this fact that the contentions raised by the petitioner before this Court have not been taken into account by the learned Trial Magistrate while passing the impugned order. In this view of the matter, it would be appropriate if the case is remanded back to the learned Magistrate with a direction to the petitioner to make a proper application before the learned Magistrate seeking permission to participate in the proceedings.

6) Accordingly, the petition is disposed of with liberty to the petitioner to approach the trial court for setting aside the exparte proceedings against him. In case such an application is made by the petitioner before the learned Trial Magistrate, the same shall be considered on its own merits by the learned Trial Magistrate keeping in view the principle that it is better to decide a lis on merits than to shutout the defence of a party. The learned Trial Magistrate shall afford an opportunity of hearing to both the parties and decide the petition on its merits in accordance with law.

7) Petition stands disposed of along with connected applications.

8) Copy of this order be sent to the learned Magistrate for information and compliance.