IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 24.08.2022 Pronounced on:02.09.2022 CRM(M) No.238/2019 SHOWKAT AZIZ ZARGAR ... PETITIONER(S)

Through: - Mr. Prince Hamza, Advocate, vice Mr. M. Y. Bhat, Sr. Advocate.

Vs.

NABEEL SHOWKAT & ANOTHER …RESPONDENT(S)

Through: - None.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT

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, 1^st Class (2^nd 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 4^th 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.1200/ 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 & anr. bs.

Bachhitar Singh, 2005 (I) S.L.J 111.

3) As already noted, the revision petition filed by the petitioner against the aforesaid order was also dismissed by 4^th 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:

488. Order for maintenance of wives, children and parent.—(1) If any person having sufficient means neglects or refuses to maintain––

(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or