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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Showkat Aziz Zargar – Petitioner
Versus
Nabeel Showkat and Another – Respondents
CRM (M) No. 238 of 2019
Decided On : 02-09-2022
MAINTENANCE - Major Son's Entitlement to Claim Maintenance - Section 488 of the J&K Cr.P.C. - 488
Fact of the Case:
The petitioner sought cancellation of maintenance order granted to his major sons. The trial Magistrate and the Revisional Court dismissed the application. The petitioner contended that the major sons are not entitled to maintenance from him after attaining majority.
Finding of the Court:
The court analyzed the provisions of Section 488(1) of the J&K Cr.P.C. and relevant case laws. It held that a major son is entitled to claim maintenance from his father only up to the age of majority, unless he is suffering from any disability. The orders of the trial Magistrate and the Revisional Court were held to be without jurisdiction and not in accordance with the law.
Issues: The main issue was whether major sons are entitled to claim maintenance from their father under Section 488 of the J&K Cr.P.C. after attaining majority.
Ratio Decidendi: The court relied on the literal interpretation of Section 488(1) of the J&K Cr.P.C. and emphasized that a major son is entitled to claim maintenance only if he is suffering from any physical or mental abnormality or injury. It also highlighted the principle that a court cannot add or subtract something from a statute which is not there.
Final Decision: The petition was allowed, and the impugned orders were set aside. It was held that the respondents are entitled to maintenance from their father only up to the age of their majority. Any amount of maintenance paid after their attainment of majority shall not be recovered from them. The amount deposited in the Registry was ordered to be released in favor of the petitioner.
JUDGMENT :
SANJAY DHAR, J.
1. The petitioner has invoked the jurisdiction of this Court under section 561-A of the J&K Cr.P.C. (corresponding to Section 482 of the Central Cr.P.C.) challenging order dated 16.10.2018 passed by learned Judicial Magistrate, 1st Class (2nd Additional Munsiff) Srinagar, whereby application of the petitioner seeking cancellation of maintenance order granted in favour of the respondents has been dismissed. Challenge has also been thrown to order dated 11.07.2019, passed by learned 4th Additional Sessions Judge, Srinagar, whereby revision petition against the aforesaid order of the learned trial Magistrate has been dismissed.
2. It appears that the respondents, who happen to be the sons of the petitioners, had moved a petition under section 488 of the J&K Cr.P.C. before the learned trial Magistrate and the said petition came to be disposed of by a consent order passed on 18.02.2012 whereby a monthly maintenance of Rs. 1,200/- was awarded to each of the respondents. It is pertinent to mention here that the respondents at the relevant time were residing with their mother Neelofer Jan, who was living separately from her husband, the petitioner herein. The petitioner retired from service and thereafter the respondents also attained the age of majority. The petitioner moved another application before the learned trial Magistrate seeking cancellation of maintenance granted in favour of the respondents. In the application it was claimed by the petitioner that respondent No. 1 has attained the age of majority on 22.10.2016 whereas respondent No. 2 has attained the age of majority on 14.03.2018. The said application was dismissed by learned trial Magistrate and while doing so, he relied upon the ratio laid down by this Court in the case of Surjeet Kour amd Another vs. Bachhitar Singh, 2005 (1) SLJ 111 : 2004 (3) JKJ 636.
3. As already noted, the revision petition filed by the petitioner against the aforesaid order was also dismissed by 4th Additional Sessions Judge, Srinagar, vide his order dated 11.07.2019.
4. The petitioner has challenged the impugned orders passed by the courts below on the ground that the respondents, upon attaining the age of majority, are not entitled to maintenance from their father i.e. the petitioner herein. It has been contended by learned counsel for the petitioner that in terms of Section 488 of the J&K Cr.P.C. it is only legitimate or illegitimate minor children unable to maintain themselves who are entitled to claim maintenance from their father. On this ground, it is urged that the respondents having attained the age of majority are not entitled to claim maintenance from the petitioner from the date they attained the age of majority.
5. The respondents after being served put in their appearance through counsel but thereafter they stopped appearing in the case. Accordingly, the matter has been heard in their absence.
6. I have heard learned counsel for the petitioner and perused the impugned orders and the material on record.
7. The legal issue which is required to be determined in this case is as to whether a major son is entitled to claim maintenance from his father under the provisions contained in Section 488 of the Jammu and Kashmir Cr.P.C. In order to find an answer to this legal issue, the provisions contained in Section 488(1) of the J&K Cr.P.C. are required to be noticed. The same are reproduced as under:
(1) If any person having sufficient means neglects or refuses to maintain:
(a) his wife, unable to maintain herself.
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself.
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself.
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon pro
A major son is entitled to claim maintenance from his father only up to the age of majority, unless he is suffering from any disability.
A father is liable to maintain his unmarried daughter only until she attains majority unless she proves inability to maintain herself due to physical or mental disability, per Section 125 CrPC.
A daughter who has attained majority is not entitled to maintenance under Section 125 Cr.P.C. unless she is unable to maintain herself due to physical or mental abnormality.
A father is liable to maintain his minor son even though the son is in the custody of the mother, and the father cannot impose a condition requiring the child to come and live with him.
The main legal point established is that the right of an unmarried daughter for maintenance from her father, even after attaining majority, is recognized under Section 20(3) of the Hindu Adoption and....
(1) Section 125 Cr.P.C. is a tool for social justice enacted to ensure that women and children are protected from a life of potential vagrancy and destitution – Conceptualisation of Section 125 was m....
The duty of the father to provide sustenance for his children, including contributing to their education, and the need for liberal interpretation of social welfare legislations to fulfill their purpo....
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