1. Petitioner is aggrieved of order dated 24th Nov. 2008 passed by Ld. Addl. Sessions Judge Srinagar in criminal revision titled Mst. Parveena and ors v. Mohammad Iqbal Shah.

2. The ld. Addl. Sessions Judge has set aside the order of the ld. Judicial Magistrate (City Munsiff) Srinagar who had rejected the application of the respondent seeking maintenance from the petitioner u/s 488 Cr.P.C.

3. The ld. Addl. Sessions Judge in terms of the impugned order has directed the petitioner to pay Rs.800/- per month as maintenance allowance in favour of the respondent No.1.

4. The petitioner and respondent No.1 married and out of the wedlock two children are born. They lived together for quite some time and thereafter separated from each other. The respondent No.1 filed application u/s 488 Cr.P.C against the petitioner in which she claimed maintenance for herself and for two minor children on the ground that petitioner had neglected/refused to maintain her and two minor children.

5. The petitioner filed objections to the said application in which he stated that he has been impressing upon respondent No.1 to resume the matrimonial relation. It was further stated in the objections that respondents 2 and 3 are living with petitioner and all expenses are being born by petitioner. The ld. Magistrate conducted enquiry in the matter. Respondent no.1 lead evidence in support of her claim. The respondent No.1 besides examining herself also examined Ab. Gani Darzi, and Imtiyaz Ahmed Darzi in support of her claim.

6. The petitioner on the other hand examined himself, as also Mohd Ashraf, Mushtaq Ahmad Parray, Ali Mohd and Alam Zaib to prove his claim put forth before the Ld. Magistrate. The Ld. Magistrate after considering the evidence and material available on record rejected the application of maintenance filed by respondent No.1 interalia on the grounds that the respondent No.1 had not come with clean hands to the Court as she filed maintenance petition on behalf of minor children, whereas the minor children are living with the petitioner (their father). Further that the respondent No.1 made false statement about the salary of the petitioner and the Ld. trial magistrate based his order on the findings which are reproduced as under: -

"As such there is no material before this court which depict that the non-applicant ever maltreated and ill-treated and had ever came drunk and beaten the applicant No.1. Besides this the provision under section 488 Cr.P.C cannot be invoke in the circumstances where the wife alleged in petition that their husband are ill-treating them and not giving sufficient money for their maintenance. In such case wife should seek remedy by separating and then seeking maintenance or dissolution of marriage.

Accordingly, on the basis of aforesaid analogy the petitioner/applicant failed to prove successfully this ingredient that she had been turned out of house by her husband and since then neglected to maintain her. This view is further fortified by case law."

7. Aggrieved of the said order, respondent No.1 filed revision petition which was allowed by the Ld. Addl. Sessions Judge and petitioner is directed to pay maintenance of Rs.800/- per month to respondent.

Heard Ld. counsel for parties. Considered the matter.

8. Mr. Chesti, Ld. counsel for the petitioner argued the case at length. He was at pains to explain that the order of the Ld. Judicial Magistrate is legal and did not call for any interference and the order of the Ld. Addl. Sessions Judge is illegal and requires to be quashed. The Ld. counsel after reading the impugned judgment in its entirety, highlighted the following points in support of his contention that the order impugned in the petition is illegal, and deserves to be quashed, the Ld. counsel submits the maintenance application filed by respondent No.1 merits rejection as the respondent No.1 came to the court with unclean hands and gave wrong information to the court that minor children are living with her, when as a matter

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