Masooda Begum And Anr vs Mohammad Ashraf Dar

1) The petitioner have challenged the order dated 24.03.2018, passed by learned Judicial Magistrate, Bandipora, whereby the learned Magistrate has

returned the petition filed by the petitioners before the said Court under Section 488 of Jammu and Kashmir Code of Criminal Procedure seeking

maintenance from the respondent.

2) Briefly stated, the case that emerges from the perusal of the record is that the petitioner No.1 happens to be the wife and petitioner No.2 happens

to be the minor son of the respondent. They approached the Court of Chief Judicial Magistrate, Bandipora, with a petition under Section 488 of Cr. P.

C seeking maintenance from the respondent. The petition was transferred by learned Chief Judicial Magistrate to Judicial Magistrate 1st Class,

Bandipora, for disposal under law.

3) It seems that the respondent had taken an objection before the learned Magistrate with regard to territorial jurisdiction of the learned Magistrate on

the ground that neither of the parties reside within the jurisdiction of the said Court nor had they last resided within the territorial jurisdiction of the said

Court. The learned Magistrate vide the impugned order accepted the plea of the respondent and held that he does not have territorial jurisdiction to

entertain the petition and directed it to be returned to the petitioners for its presentation before the appropriate forum.

4) I have heard learned counsel for the petitioners and perused the impugned order and the material attached to the petition.

5) Vide the impugned order, the learned Magistrate has observed that the petitioners at the time of filing of the petition, as per the title of the petition,

were residing at Hajin Bandipora whereas the respondent is residing at Grath Saloora Ganderbal, and according to learned Magistrate, neither Hajin

Bandipora nor Grath Saloora Ganderbal fall within his territorial jurisdiction. The learned Magistrate has further observed that it is not the case of the

petitioners that they at any point of time last resided within the jurisdiction of the said Court. On these grounds, it was concluded that the said Court

lacks territorial jurisdiction to entertain the petition and, accordingly, the same was directed to be returned to the petitioners.

6) In order to determine the controversy involved in this case, we need to notice the provisions of Section 488(8) of the Jammu and Kashmir Code of

Criminal Procedure, which reads as under:

“488(8)Proceedings under this section may be taken against any person in any district where he is or his wife resides or where he last

resided with his wife, or as the case may be, the mother of the illegitimate child.â€​

7) From the aforesaid provision, which is in pari materia with Section 126(1) of the Central Cr. P. C, the proceedings for maintenance can be filed by

a wife against her husband either in the district where she resides or in the district where the husband resides. Alternatively, she can also file a petition

in the district where she had last resided with her husband. It may be correct that as per the title of the petition, petitioners are residing at a place

which is outside the territorial jurisdiction of learned Judicial Magistrate, 1st Class, Bandipora and even the respondent is also residing outside the

territorial jurisdiction of the said Court. In the petition, it is nowhere stated that the petitioners had last resided with the respondent at any place falling

within the jurisdiction of Judicial Magistrate, 1st Class, Bandipora. But then, as noted by the learned Magistrate in the impugned order, the petition was

transferred to the said Court by the orders of learned Chief Judicial Magistrate, Bandipora, who is vested with jurisdiction over whole of the District

Bandipora.

8) Section 192 of the J&K Cr. P. C gives jurisdiction to a Chief Judicial Magistrate to transfer any case of which he has taken cognizance, for inquiry

or trial, to any Magistrate subordinate to him. It reads as under:

“192. Transfer of case by Magistrates.â€"(1) Any Chief Judicial Magistrate may transfer any case, of which he has taken cognizance,

for inquiry or trial, to any Magistrate subordinate to him.

(2) Any Chief Judicial Magistrate may empower any Judicial Magistrate of the first class who has taken cognizance in his district who is

competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly.â€​

9) From a perusal of the above quoted provision, it is clear that when a Chief Judicial Magistrate transfers a petition or a complaint to a Magistrate

subordinate to him, the said subordinate Magistrate is conferred with the jurisdiction to entertain and try such complaint or petition. Once the petition

under Section 488 of Cr.P.C filed by the petitioners was transferred by Chief Judicial Magistrate, Bandipora, to Judicial Magistrate, 1st Class,

Bandipora, the learned Judicial Magistrate would automatically get jurisdiction to entertain and try the said petition. The learned Magistrate, while

passing the impugned order, has ignored the provisions contained in section 192(2) of the J&K Cr. P. C. Not only this, the petition was pending in the

Court of learned Judicial Magistrate for about six months where after he returned the petition citing lack of jurisdiction as the reason thereby putting

the hapless petitioners in a precarious position. If at all there was any ground for returning the petition to the petitioners, the same should have been

done at the very first hearing, not after proceeding with the case for more than six months, that too in a case where a destitute lady had approached

the learned Magistrate for grant of maintenance.

10) Be that as it may, the impugned order passed by the learned Judicial Magistrate suffers from grave illegality as the same has been passed in

disregard of the provisions contained in Section 192 of the J&K Cr. P. C and, as such, is unsustainable in law. The same is, accordingly, set aside. The

learned Judicial Magistrate, 1st Class, Bandipora, is directed to entertain and dispose of the petition filed by the petitioners for grant of maintenance

with utmost promptitude in accordance with the law.

11) A copy of this order be sent to the learned trial court for information and compliance.