Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife: High Court of J&K and Ladakh

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRMc no.116 2019no.116 2019] Farooq Ahmad Naikoo Haseena and others Reserved on: 17.08.2021 Pronounced on: 08.10.2021 Through: Mr M. Ayoub Bhat Advocate Through: Mr S. M. Ayoub Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. In this petition preferred under Section 561 A Cr. P. C.quashment of execution proceedings pending before the court of Judicial Magistrate Pulwamain the case titled Mst. Haseena and others v. Farooq Ahmad Naikoo as also quashment of order dated 6th October 2017 passed by the Trial Court. He also seeks quashment of order dated 23rd March 2018 passed by Additional District & Sessions Judge Pulwamain a Revision Petition titled Farooq Ahmad Naikoo v. Mst. Haseena and 2. I have heard learned counsel for parties and considered the matter. 3. According to learned counsel appearing for petitioner impugned orders and judgement have been passed by both the Trial and Revisional Courts without appreciation of facts and circumstances of the law. He states that order dated 6th October 2017 has been passed in ex parte denying opportunity of being heard to petitioner. He also avers that Page 1 CRMC no.116 2019 application seeking execution of the order dated 6th October 2017 is a gross abuse of process of court as it was brought to the notice of Trial that question of seeking execution of order awarding maintenance to respondents does not arise as respondents are and have been living with petitioner. 4. Perusal of the order dated 6th October 2017 reveals that respondents herein have preferred a petition under Section 488 Cr.P.C.and sought grant of maintenance therein. The Trial Court directed petitioner to make monthly maintenance @ Rs.750 in faovur of petitioners. 5. Against the order dated 6th October 2017 petitioner preferred a Revision Petition before the Revisional Court. The said revision petition vide order dated 23rd March 2018 has been dismissed as it has been found that petitioner has a remedy in terms of proviso to Subsection 6 of Section 488 Cr.P.C. whereunder he can approach the Trial Court for setting aside ex parte proceedings. 6. Taking into account case set up by petitioner and submissions made by learned counsel for petitioner it may be mentioned here that if a person notwithstanding having sufficient means neglects or refuses to maintain his wife his legitimate or illegitimate minor child whether married or not can be directed to pay monthly allowance for maintenance of his wife or child. It would be appropriate to reproduce Section 488 Cr. P.C. hereunder: “488. Order for maintenance of wives children and parents. — 1) If any person having sufficient means neglects or refuses to a) his wife unable to maintain herself or b) his legitimate or illegitimate minor child whether married or not unable to maintain itself or c) his legitimate or illegitimate childwho has attained majority where such child is by reason of any physical or mental abnormality or injury unable to maintain itself or d) his father or mother unable to maintain himself or herself a 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 or such child father or mother at such monthly rate 1[x x x] as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clauseto make such allowance until she attains her majority if the Magistrate is satisfied that the husband of such minor female child if married is not possessed of sufficient means. Page 2 CRMC no.116 2019 Explanation. —For the purpose of this Chapter “minor” means a person who under the provisions of the Majority Act Samvat 1977 is deemed not to have attained his majority]. 2) Such allowance shall be payable from the date of the order or if so ordered from the date of the application for maintenance. 3) If any person so ordered fails without sufficient cause to comply with the order any such Magistrate may for every breach of the order issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further if such person offers to maintain his wife on condition of her living with him and she refuses to live with him such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer if he is satisfied that there is just ground for so doing. 4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. 5) On proof that any wife in whose favour an order has been made under this section is living in adultery or that without sufficient reason she refuses to live with her husband or that they are living separately by mutual consent the Magistrate shall cancel the order. 6) All evidence under this Chapter shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons cases: Provided that if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the Court the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown on an application made within three months from the date thereof. 7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just. 8) Proceedings under this section may be taken against any person in any district where he is or he or his wife resides or where he last resided with his wife or as the case may be with the mother of the illegitimate 7. Dominant and primary object of Section 488 is to give social justice to the woman child and infirm parents etcetera and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. It provides that any person who has sufficient means to maintain himself cannot deny maintenance to his wife and children. The object is to Page 3 CRMC no.116 2019 prevent vagrancy and destitution. It provides a speedy remedy for supply of food clothing and shelter to deserted wife. 8. Right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife. JKJ HC 701]. 9. When the case in hand is analysed in the backdrop of above settled position of law it does not make out any case to set aside impugned orders or for that matter the proceedings under Section 488 Cr.P.C. Petitioner cannot deny to pay maintenance to his wife and or children. He is otherwise obliged to make payment of maintenance. Petition on hand clearly reflects and portrays disinclination on the part of petitioner to pay maintenance that has been directed by courts below to be paid by him to his wife and or children. Resultantly petition is liable to be dismissed. 10. For the reasons discussed above the instant petition is without any merit and is accordingly dismissed with connected CM(s). Interim direction if any shall stand vacated. 11. Copy be sent down along with the record. Ajaz Ahmad PS Whether the order is reportable: Yes No. Judge Page 4 CRMC no.116 2019 

Summary: Right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife as observed by the High Court of J&amp;K, while citing the case-law of Hamida v. Ahmedullah Wani 2010 (7) JKJ HC-701, through the learned bench of Justice Vinod Chatterji Koul in the case of Farooq Ahmad Naikoo Vs Haseena and others [CRMc no.116/2019 (CRM(M) no.116/2019)]. In the petition, preferred under Section 561-A Cr. P. C, quashing of execution proceedings pending before the court of Judicial Magistrate, Pulwama (for short “Trial Court”) in the case titled Mst. Haseena and others v. Farooq Ahmad Naikoo, as also quashing of order dated 6th October 2017 passed by the Trial Court. He also seeks to quash of the order dated 23rd March 2018, passed by Additional District &amp; Sessions Judge, Pulwama (for brevity “Revisional Court) in a Revision Petition titled Farooq Ahmad Naikoo v. Mst. Haseena and others. According to the learned counsel appearing for the petitioner, impugned orders and judgment have been passed by both the Trial and Revisional Courts without an appreciation of facts and circumstances of the law. He states that the order dated 6th October 2017 has been passed in ex parte, denying the opportunity of being heard by the petitioner. He also avers that application seeking execution of the order dated 6th October 2017 is a gross abuse of process of court as it was brought to the notice of Trial Court that question of seeking execution of order awarding maintenance to respondents does not arise as respondents are and have been living with petitioner. Against the order dated 6th October 2017, the petitioner preferred a Revision Petition before the Revisional Court. The said revision petition vide order dated 23rd March 2018 has been dismissed as it has been found that petitioner has a remedy in terms of proviso to Subsection 6 of Section 488 Cr.P.C., where under he can approach the Trial Court for setting aside ex parte proceedings. The Hon’ble High Court taking into account the case set up by the petitioner and the submissions made by the learned counsel, dismissed the petition while stating that “Dominant and primary object of Section 488 is to give social justice to the woman, child, and infirm parents etcetera and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. It provides that any person, who has sufficient means to maintain himself, cannot deny maintenance to his wife and children. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to deserted wives. The right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife.”