Tahira and another vs Tahira Banoo & another

By this order, I am proposing to dispose of the reference which has been made in revision petition Nos. 8/1982 and 9/1982 titled Tahira and

Asif Iqbal versus Hakim Ab. Rashid and Hakim Ab. Rashid Versus Tahira & Anr. respectively. These two reference have arisen out of the order

of maintenance having been passed by the court of Judicial Magistrate 1st Class (subRegistrar) Srinagar dated 30.10.1982, whereunder the

learned Magistrate while allowing the application for maintenance on behalf of Tahira Banoo wife and Asif Iqbal, minor son of Hakim Abdul

Rashid against the nonapplicant under Section 488 Cr.P.C. moved before the said court way back on 31.3.1980.

The learned Magistrate after having issued notice to the respondent/nonapplicant and calling upon him to file his objections or show cause why

maintencance charges as envisaged under section 488 Cr.P.C. may not be made, he in response appeared and had filed his objections. In the

objections besides pleading that he being a Khanadamad was illtreated by his inlaws, the parents of the petitioner, and he had taken ill when he

was turned out from his inlaws house. He went to his parental house, where he also fell ill fora pretty long time, and was being treated for his

physical and mental ailments. The petitioner Mst. Tahira never visited him and she did not care for him. It is also an admitted fact that during this

period, the person of the nonapplicant has not paid any maintenance to the wife or to the minor child born our of wedlock, though the nonapplicant

before the court below had shown his ignorance about the birth of his son. He has made an offer to the wife to live with him The court after having

recorded evidence and hearing arguments and appreciating the matter had come up with an order of maintenance with the direction that

nonappncant shall pay an amount of Rs 60 as monthly maintenance to his wife and Rs. 75 as maintenance to the minor child. The order was to

take effect from the date of the order and not from the date of application.

Aggrieved by this order, both the petitioner as well as the nonapplicant before the court below had filed above referred two revision petition

before the court of Additional Sessions Judge, Srinagar.

The learned Additional Sessions Judge after hearing the parties in the revision had recommended for quashrrient of the order of maintenance

having been passed by the learned Magistrate in favour of applicant Mst. Tahira, wife of nonapplicant, but allowed the maintenance passed in

favour of the son born out of wedlock of the parties on the count that the person of nonapplicant Hakim Abdul Rashid had married with the person

of the petitioner Mst. Tahira in the capacity of Khanadamad, as such, in light of the law laid down by the different benches of this court and

reported as 1936 PLR J&K 104 and 1971 JKLR 431, holding that a Khanadamad goes to the house of his inlaws and lives there and as such, he

is not liable to pay maintenance allowance to his wife, living in her father's house and further more a Khanadamad enjoys certain benefits and

privileges in the inlaws house. He succeeds to the property after the death of his wife and has thus life interest in the property left by his deceased

wife. On this and other counts, the courts have observed that the Khanadamad is not liable to pay maintenance. On this aspect, the learned Addl.

Sessions Judge had quashed the order of the trial Magistrate and made his recommendations for setting aside the order, ordering maintenance to

be recovered from the husband Khanadamad to maintain his wife He has further rejected the revision petition filed by Mst. Tahira and Asif Iqbal,

her minor son on the count that the order for enforcement of maintenance has been made from the date of order and it is discretionary with the

Magistrate. He may order payment of maintenance from the date of order or from the date of application and this discretion exercised by the

Magistrate cannot be interfered by the revisional court ordinarily and on this count also, he has rejected the revision petition. 6. I had the occassion

to go through the record and also the recommednations made by learneH Add1 Session Judge. I do not agreewith the recommendations made by

learned Sessions Judge and as such, the reference made by him is rejected, in rejection the reference, I project my view point as under

Provisions of Section 488 Cr.P.C. empower the Magistrate to pass an order of maintenance. This power is a statutory and has been enacted

only to save the destitute women and also the children who are not in a position to maintain themselves. No wife or child should be left helpless as

to be tempted to commit crime or to tempt others to commit crime in regard to them. The object of enactment is only to provide cheap and speedy

but limited relief for deserted wives and children. It does not mean, however, the only or indeed the most satisfactory remedy open to them. They

may file regular suit for maintenance in the civil court, but if there is a real emergency the summary relief as is deemed necessary may be asked for

as is provided by the provisions of Section 488 Cr.P.C. and obtained from the Magistrate and the Section 488 Cr.P.C. is without prejudice to the

rights which are conferred under the personal law of the parties or under the customary law applicable to them. The right to maintenance under this

section is a statutory right which legislature created irrespective of the nationality or religion faith of the parties. No doubt only condition precedent

to the possession of that right in the case of wife is existence of a conjugal relation. Right conferred upon the wife is independent of personal law

and to claim protection of personal customary law by husband is not permissible.

The right to maintenance to wife and the children by the husband or the father is a statutory right and the duty is created by expressed enactment

independent of the personal law of the parties. Not only that, it is the speedest remedy which has been provided to the wife and the children who

are neglected or are not maintained by the husband or father. Even no period of limitation has been prescribed under the Statute or any other

provisions of the Criminal Procedure Code for filing an application for maintenance. The proceedings no doubt under the relevant chapter provided

therefor in the Criminal Procedure Code are quasijudicial in nature and are to be conducted accordingly. The wording of Section 488 Cr.P.C.

clearly shows and lays down:

Order of maintenance of wives and children:(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate

or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class may, upon proof of such

neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, at such rate, not exceeding five hundred rupees

in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

The Section further provides that:

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultry, or if, without any sufficient

reason, she refuses to live with her husband, or if they are living separately by mutual consent.

Thus the only rider provided under the Statute is that the wife shall not be entitled to receive allowance if it isjjrovided that wife is living in

adultery or if without sufficient reasons she refuses to live with her husband or they are living separately. But nowhere it is provided that wife will

not be entitled for maintenance if personal law of the wife does not allow this or if the Customary law or usage has amended the statutory

provisions enacted in the Criminal Procedure Code under the caption section 488 Cr.P.C. This point has several times come fro consideration

before their lordships of this court. The concept of Khanadamad and Khananisheen have been discussed in threadbare.

Admittedly institution of Khanadamadi or Khanahish daughter is existing in the valley. Khanadamad may no doubt have plausable plea or

defence if a civil suit for maintenance is filed by the wife who is khananishin daughter. A Khanadamad can and is within his rights to defeat the civil

suit of his wife erstwhile Khananashin daughter of her father on the plea that as because he had come as Khanadamad and as Khanadamad he is

not entitled to pay maintenance and the defendant was to live as Khanadamad in the plaintiff's parental house and at the time of marriage of the

daughter as Khananashin, the Khanadamad was brought in the family. All the expenses of the marriage and even the clothing and other expenses of

the bridgegroom Khanadamad were also born out by the fatherinlaw i.e father of the Khananashin daughter. The husband has almost nothing to

spent and it is the fatheinlaw alone who has to make provisions for everythings both for his soninlaw and for daughter kept at home and in the

words of Main Justice JalaudDin reproted as 1971 JKLR431:

....Infact the Khana Damad is brought as a son in the house. Should the soninlaw repudiate his Khanadamadi and decide subsequently to leave

parent's house of his wife and to take his wife alongwith him, or runs away from there without any rhyme or reason and does not maintain his wife

and perform the matrimonial rights, he upsets the whole arrangements of the family and of the house..........

According to institution Khanadamadi which is prevelant in the valley of Kashmir, a Khanadamada puts himself voluntarily under a customary

obligation to live in his fatherinlaw's house permanently, for that solves many of the problems of the family. He himself enjoys some amenities. He

has not to bother much about his wife's maintenance. On his father inlaw's death his wife succeeds as a son and he himself acquires a life interest in

the property after the death of his wife....

Such a plea may be taken by a Khanadamad in a civil suit of maintenance filed by a wife and this judgment has been given by his lordship while

he was deciding civil Second Appeal. Otherwise the observations and the considered opinion of his lordship continues to be the same as has been

held by different benches of this court, holding that right of maintenance under section 488 Cr P C. is a statutory right and cannot be annuled/

varried by the custom or personal law His lordship while deciding Criminal Revision No 5 of 1977 titled Mst. Mughli versus Mohammad parray,

reported as JKLR 1977, page 559. where in his lordship has held:

Section 488 Cr.P.C. imposes a statutory obligation on the husband to pay maintenance to his wife in case of neglect or refusal by him to maintain

her. The section has got statutory force and is independent of any custom. What the court has to consider in such a case is whether the husband is

guilty of neglect or desertion of his wife. If that is established then the section imposes a statutory responsibility on the court to award maintenance

to the wife neglected by the husband. Any consideration of custom is out of question. Of course in such proceedings the husband can offer to

maintain the wife and can ask her to live with him, but the offer must be bonafide and must not be made so as to overside the mutually agreed

terms and considerations of any established custom which the parties have accepted to abide by at the time of the performance of the marriage.

Not only that, even a coordinate bench of this court while deciding the Criminal reference No. 44 of 1976 titled Mohammad Ramzan Dar

Versus Mst. Hameeda reported as JKLR1977, page 170 had made reference to an earlier judgment of this court which is reproted as AIR 1957

J&K 37, wherein it has been held:

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.

Learned Court has also made reference to 1971 JKLR 462 and in that case also, the question before the court was whether the provisions of

Section 488 Cr.P.C. were indendent of the personal law or custom governing the parties, came for determination. The answer given by the

Division Bench after careful scrutiny of the ruling on the point was in the affirmative. It was observed that right of maintenance under Section 488

was independent irrespective of the nationality or creed of the parties, the only condition precedent to the possession of that right being in the case

of wife the acceptance of conjugal rights. The rights of maintenance under section 488 Cr.P.C. was distinct and separate statutory right which has

been conferred on the wife of a personal irrespective of the caste, creed, nationality or religion to which she belongs. It has also been observed by

their lordships that a similar question arose in a matter before the apex court and the Supreme Court in AIR 1970 SC 446. Their lordships of the

Supreme Court have approved the view taken by Patna High Court and some other High Courts of the Country to the effect that provisions under

section 488 Cr.P.C. were applicable to all person belonging to all religions and has no relationship with the Personal law of the parties, and as per

observations of justice G.M. Mir, as his lordship then was, that the observations of their lordships of the Supreme Court have apparently finally

clinched the matter in favour of the contentions that the provisions of Section 488 Cr.P.C. could not be over ridden by any provision in the

personal law of the parties or by existence of any cistom to the contrary.

Another judgment given by a Full Bench of this court reported as Kashmir Law Journal 1986, page 56 while deciding criminal revision No. 92

of 1980 titled Mst. Hamida versus Admadullah Wani. In the said judgment, the full bench has given resume of all the judgments which have been

announced till date by different benches of this court and have laid down that liability to pay maintenance by Khanadamad and claimed by

Khananishin daughter is covered under section 488 Cr.P.C. and it has been held that right to seek maintenance by a wife from her husband,

whether Hindu or Muslim is a statutory right and this right is guaranteed under section 488Cr.P.C. and the right to get maintenance is not

obliterated or affected by a custom nor custom absolve the husband from his obliqation to pay the maintenance to his wife therefore, as regards

Khannashin daughter and her Khanadamad husband claim for mamtenacne is to be determined only on the basis of section 488 Cr P C and on no

other consideration.

It has also been held that by no stretch of imagination it can be said that provision of section 488 Cr.P.C. are superseded by any custom which

custom has bearing only as regard inheritance of property by a daughter who is made Khananashin. Therefore, right of inheritance to a proptery by

a daughter of her father will not effect the entitlement to recieve maintenance under section 488 Cr.P.C which is to be enforced only against the

husband.

The Full Bench while deciding the case captioned above has made reference and reliance on AIR 1957 J&K 37, AIR 1970 SC 446, 1977

JKLR 170 and 1977 JKLR 559. So the law is not settled in the State of Jammu and Kashmir that right to seek maintenance by a wife from her

husband, whether Hindu or Muslim, is a statutory right and the right is guaranteed under the provisions of Section 488 Cr.P.C. Said right has

neither been superseded by any custom or by personal law. So in light of this law which was existing in the State of Jammu and Kashmir, learned

Additional Sessions Judge should have addressed himself properly and before making reference, he should have addressed himself on the law

which was prevelant in the valley, which has been authenticated not only by single benches, on which he has made reliance, but also by full bench

and other coordinate benches of this court.

Thus in light of the law which has been laid down in the above noted cases and the law which has been ennuciated by this court, I am of the

considered view, as I have said in the very opening of this judgment that right to daim maintenance by a wife is a statutory right and it cannot be

overridden by the customs which is being projected. No doubt this plea is available to a Khanadamad in a civil suit, if wife files the suit for

maintenance the statutory law authorises the Magistrate to pass order of maintenance, the moment it is brought before him that wife has been

neglected or deserted or child unable to maintain himself has been denied maintenance, of course, the wife unless some sufficient reason is shown

not to resume conjugal relations or to cohabit with the husband, she is entitled to separate maintenance under the provisions of the statute.

18 In light of the above observations, the reference is acordingly rejected.

The observation made by the reference court in the case of Mst. Tahira that the discretionary order passed by the court below is not to be

interferred with by the court of reference is not sound law and is not in accordance with the pronouncements of the apex court and this court. I say

so because every Magistrate when he is passing discretionary order has to pass such order judiciously and in case he wants to deviate from

exercising such discretion or exercise his discretion, he has to give cogent reasons for that. Here the Magistrate while allowing the maintenance for

the child has not properly exercised his discretion in not allowing the appliction for maintenance of the child unable to maintain itself from his father

Abdul Rashmid Hakim irrespective of the fact whether he was Khana Damad or otherwise. But as father he is bound to maintain his legitimate or

illegitimate child as per statute.

So I while hearing this revision in exercise of my powers vested in this court under section 439 Cr.P.C., do hereby set aside the order of

rejection of the petition made by the Additional Sessions Judge and I allow the revision petition made by Mst. Tahira and order that the

maintenance allowance which has been granted by the court of Judicial Magistrate 1st class/SubRegistrar to the tune of Rs. 75 to the minor from

the date of order shall take effect from the date of application,, and Rs. 60 per month as monthly allowance in favour of Mst. Tahira from the date

of order is upheld.

21 It may not be out of place to mention that the amount of maintenance has been awarded by the learned Magistrate way back in 1982 and by

now more than fifteen years have passed. In case the petitioner Asif Iqbal is still minor is unable to maintain himself, he can move the Magistrate

under the provisions of Section 489 Cr.P.C. for enchancement of his maintenance allowance, as per law.