1 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 (sub-Registrar) 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 non-applicant under Section 488 Cr.P.C. moved before the said court way back on31.3.1980.

2. The learned Magistrate after having issued notice to the respondent/non-applicant and calling upon him to file his objections or show cause why maintenance 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 ill-treated by his inlaws, the parents of the petitioner, and he had taken ill when he was turned out from his in-laws house. He went to his parental house, where he also fell ill for a 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 non-applicant has not paid any maintenance to the wife or to the minor child born out of wedlock, though the non-applicant 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

3. 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 non-applicant 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.

4. Aggrieved by this order, both the petitioner as well as the non-applicant before the court below had filed above referred two revision petition before the court of Additional Sessions Judge, Srinagar.

5. The learned Additional Sessions Judge after hearing the parties in the revision had recommended for quashment of the order of maintenance having been passed by the learned Magistrate in favour of applicant Mst. Tahira, wife of non-applicant, but allowed the maintenance passed in favour of the son born out of wedlock of the parties on the count that the person of non-applicant 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 JKLR431, holding that a Khanadamad goes to the house of his in-laws and lives there and as such, he is not liable to pay maintenance allowance to his wife, living in her fathers 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

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