Keputusan kes Lubna Mehraj And Ors. v
Mehraj-Ud-Din Kanth walaupun merupakan suatu kes tuntutan nafkah iddah dan
nafkan anak dibawah seksyen 488 dan 489 Jammu and Kashmir Code of Criminal
Procedure (Amendment) Act, 1998, namun ia adalah juga berkaitan dengan hal
pemakaian Hukum Islam di Negeri Jammu Kashmir. Oleh itu isu persoalan dan
kaitannya adalah sama seperti kes Mst Fazi v Ali yang telah di kemukakan
dalam posting sebelum ini.
Hakim V.K. Jhanji, Acting C.J. dalam kes itu
berkata:
The
real question is whether the Personal Laws can be applied by the Criminal
Courts in proceedings initiated under Section 488 Cr. P.C. in the State of
Jammu and Kashmir.
We
have already quoted the judgment of the Division Bench of this Court in Fazi
v Ali Mohd (supra) in which a portion of Clause (d) of Sub-section (1) of
Section 4 of Consolidation Act has been quoted. We deem it appropriate to quote
hereunder the full text of the aforesaid provision of law insofar as it is
relevant:
"4.
Laws in force.
(1) The
Laws administered and to be administered by the Civil and Criminal Courts of
the State of Jammu and Kashmir are and shall be as follows :
(a)..
(b)
...
(c)
...
(d)
in question regarding succession, inheritance, special property of females,
betrothals, marriage, divorce, dower, adoption, guardianship, minority,
bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or
any religious usage or institution, the rules of decision is and shall be the
Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in
cases where the parties are Hindus, except in so far as such law has been, by
this or any other enactment, altered or abolished or has been modified by any
custom applicable to the parties concerned which is not contrary to justice,
equity and good conscience and has not been, by this or any other enactment,
altered or abolished and has not been declared to be void by any competent
authority."
30.
The aforesaid provision makes it unambiguously clear that not only Muslim
Personal Law, but Hindu Law as well, is to be administered by the Civil and
Criminal Courts. Therefore, following the ratio of the judgments of the Supreme
Court in Noor Saba Khatoon v Mohd Quasim and Jagdesh Jugtawat v Manju
Lata (supra) as also the judgment of this Court in Fazi v Ali Mohd
(supra), Personal Laws can be and have to be read together with the provision
of Section 488 of the Code of Criminal Procedure in Jammu and Kashmir State.
In
that view of the matter, we are of the view that the learned Single Judge in Mala
Sidiq v Dilshada Banoo (supra), though noticed the right position of law,
but did not apply the same correctly, apparently, on account of inadequate
assistance rendered to the Court by the concerned counsel, in as much the
Consolidation Act of 1920 was not brought to the notice of the Court.
Lihat sebahagian dari alasan keputusan kes Lubna
Mehraj tersebut di bawah ini [setakat yang berkaitan] untuk rujukan bersama.
########################
Lubna
Mehraj And Ors. v Mehraj-Ud-Din Kanth 2004 (1) JKJ 418
Decision by
The Jammu High Court on 8 October, 2003
Bench: V
Jhanji, S Bashir-Ud-Din
JUDGMENT : V.K.
Jhanji, Acting C.J.
1. This
Criminal Reference emanates from proceedings under Section 488 read with
Section 489 of the Code of Criminal Procedure.
2. It appears
that, on an application being made before the learned Chief Judicial
Magistrate, Srinagar, under Section 488 of the Code of Criminal Procedure by
one Nahida, wife; and Lubna Mehraj and Hena Mehraj, two daughters, i.e.,
Petitioners 1 and 2; and petitioner No. 3, Owais Mehraj, son, of the
respondent, the learned Magistrate, in terms of his order dated 20th August, 1997,
granted Rs. 500 each as maintenance in favour of the three petitioners. Their
mother, Nahida, was divorced by the respondent during the pendency of the
aforesaid proceedings. At that time the maximum limit of maintenance, which
could be granted by the Magistrate, was Rs. 500.
Subsequently,
the State of Jammu and Kashmir enacted the Jammu and Kashmir Code of
Criminal Procedure (Amendment) Act, 1998 (Act No. IV of 1998). By virtue of
the aforesaid amendment, besides recasting Section 488, certain insertions were
made in Section 489 of the Code whereby, among other insertions made, the limit
of maintenance was increased from Rs. 500 to Rs. 2000. The petitioners herein
on 8th February, 1999 made an application under Section 489 of the Code before
the learned Chief Judicial Magistrate seeking enhancement of the maintenance
allowance granted in their favour.
…
Against that
order, the respondent herein preferred a Revision Petition before the learned
1st Additional Sessions Judge, Srinagar. The learned Sessions Judge, after
hearing learned counsel for the parties and noticing the relevant law, recorded
a finding that the said two petitioners were entitled to claim maintenance and,
accordingly, vide order dated 29th November, 2001, dismissed the revision
petition filed by the respondent. Consequent upon the disposal of the aforesaid
revision petition, the learned Magistrate, after hearing learned counsel for
the parties and on the basis of the material brought on record, found that the
maintenance of Rs. 500/ each granted in favour of the petitioners was
insufficient. He also found that the petitioners had no other source of income
to meet their day to day expenses.
Having regard
to the material brought on record, the learned Magistrate allowed the
application and enhanced the maintenance allowance of petitioners, 1 and 2 from
Rs. 500 to Rs. 1500 each and, in respect of petitioner No. 3, from Rs. 500 to
Rs. 1,000. The enhancement, as aforesaid, was allowed from the date of order,
i.e., 4th September, 2000. Aggrieved of the said order, the respondent filed
Revision Petition No. 5/2002 before the learned Additional Sessions Judge,
Srinagar, which came to be heard on 3rd June, 2003. The learned Additional
Sessions Judge has made the following proposal:
"Hence it is recommended that the order of the
learned court below may be modified to the effect that enhanced maintenance
allowance shall be Rs. 2000 instead of Rs. 1500 each in favour of the
petitioner No. 1 and 2 and Rs. 1500 instead of Rs. 1000 in favour of the
petitioner No. 3 to be payable from the date of order of the court below, i.e.
from 4.9.2002..."
3. The aforesaid
Reference made by the learned Additional Sessions Judge, came up for hearing,
in routine, before the learned Single Judge on 21st August, 2003. Learned
counsel for the respondent, Shri G. A. Lone, citing a recent judgment passed by
one of the learned Single Judges of this Court in Mala Sidiq v Dilshada
Banoo Cr. Ref. No. 26/2002 decided on 29th May, 2003, contended that a
major daughter was not entitled to maintenance under Section 488 Cr. P. C. On
the other hand, learned counsel for the petitioners stated that the judgment in
Mala Sidiq v Dilshada Banoo (Supra) required reconsideration as,
according to him the judgments of the Supreme Court, wherein unmarried major
daughters have been held to be entitled to maintenance, have not been correctly
interpreted.
…
6. In this
Reference the most important question that falls for consideration is whether
an unmarried major daughter is entitled to claim maintenance from her father in
summary proceedings under Section 488 of the Code of Criminal Procedure. In
this judgment, we will restrict our observations only in relation to that
question. In fact, the learned counsel confined their arguments only in
relation to the aforesaid question.
….
8. Chapter
XXXVI of the Code of Criminal Procedure comprising Sections 488, 489 and 490
provides for maintenance of wives, children and parents. A cursory glance at
the aforesaid provisions indicates that the same are intended to serve a social
purpose and reaching out social justice to destitute wives, children and
parents neglected by persons responsible for giving due attention to them. This
Chapter constitutes a Code in itself under the caption "Of the maintenance
of wives, children and parents". The caption serves as a preamble
thereof and
depicts the object of the enacting provisions of the Code contained thereunder.
The recitals of the caption, as aforesaid, are indicative of the intention of
the Legislature in enacting law aimed at remedying the neglect and refusal to
maintain, inter alia, children irrespective of their age. However, clauses (b)
and (c) of Sub-section (1) of Section 488, concerning the children, apparently,
fall short of the indications that are gathered from the caption. Nevertheless,
whereas Clause (b) limits the exercise of the power of the Magistrate to minor
children, Clause (c) carves out an exception to the said limit and includes an
unmarried major daughter in situations mentioned therein. It would be
advantageous to quote herein below Section 488 of the Code, as amended by the
Amending Act of 1998:
488. Order for maintenance of wives, children and
parents:-
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
(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, 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 not exceeding two thousand rupees in the whole, 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 Clause (b) to 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."
9. The aforesaid
amended provision contains an explanation to the effect that "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."
10. The
opening words of Sub-section (1) of Section 488 are, "If any person having
sufficient means neglects or refuses to maintain". The meaning assigned to
the word 'neglect', as it occurs in the aforesaid provision, is disregard; pay
little or no respect or attention to; slight, leave unnoticed; fail to give
proper attention to; fail to take proper or necessary care of; leave unattended
to or uncared for; fail to perform, leave undone, be remiss about; fail through
carelessness or negligence to do, omit doing; cause (something) to be neglected
(The New Shorter Oxford English Dictionary, Vol. 2, 1993 Edition). The word
"neglect" has aptly been explained to mean "that a person has
not done that which it was his duty to do". (Blacks Law Dictionary,
Seventh Edition).
We are of the view
that the meaning assigned to the word fully fits in the context in which it
occurs in Sub-section (1) of Section 488 Cr. P.C. Therefore, the word 'neglect'
not only means a tacit non-performance of such a duty by father but also
embraces the duty of a father to maintain his unmarried major daughter. The
phrase "refuse to maintain" connotes an "indication of
unwillingness to maintain" and the indication need not be express. The
language thus employed in these opening words of Sub-section (1) postulates not
only the existence of absolute nature of such duty and responsibility of a
father, but also a corresponding legally enforceable right of such a daughter.
…
17. It may be
observed here that there was no such provision as Clause (c) in the pre-amended
Code of 1989 (1933 AD). Section 488, as said earlier, was recast by the State
Legislature in the year 1998 (Act No. IV of 1998). The wisdom of the
legislature and the intent behind the amendment, obviously, has been to bring
the law in pace with the present social order. Clause (c), like other clauses,
has added new dimensions to the welfare enactments as are contained in Chapter
XXXVI of the Code with the object of responding to the urgent social demands
and to have some more immediate and visible impact on social reforms. The
provision is aimed at not only remedying the neglect and refusal to maintain,
but also, as settled by the Supreme Court, at preventing the ill and evil
consequences of such child neglect and refusal to maintain. Such ill and evil consequences
include vagrancy, immorality and resort to crime for sustenance. That being so,
it could not be the intention of the legislature that a girl child should first
develop any mental injury on account of neglect, which may further lead to
serious complications, and then the preventive and remedial measures would
operate. If preventive features are not read in the provision, then that would
belittle the social purpose of the legislation and render it an antithesis to
its very object. Section 488 Cr. P. C., as enacted, has to be read and
construed having regard to its beneficent nature and cause of social justice
assimilated therein. The pre-amended provision related to a period when people
were educationally and economically weak to an extent that children would have
to do with just two time coarse meals and a few shreds of cloth to cover their
bodies. With the increase in educational consciousness and other allied factors
and activities, the horizons of developmental thoughts among children have
broadened. The law at hand cannot be construed in such a manner as would retard
the administration of justice and favour perpetuation of social wrongs, more so
when the amendments in the law are recent and commensurate with the modern
needs of the society. It would be apt to quote here the observations of the
Supreme Court in Skamima Ara v State of U. P. AIR 2002 SC 3551:
".......... [Our country has in recent times
marched steps ahead in all walks of life including progressive interpretation
of laws which cannot be lost sight of except by compromising with regressive
trends.......".
18. The need,
therefore, is to construe Clause (c) of Sub-section (1) of Section 488 Cr. P. C
liberally to fructify the object underlying the provision. In this connection
it would be advantageous to quote here the observations of the Apex Court in Shri
Bhagwan Dutt v Smt. Kamla Devi (1975) 2 SCC 386:
"11.... This chapter in the words of Sir James
Fitzstephen, provides 'a mode of preventing vagrancy, or at least of preventing
its consequences'. These provisions are intended to fulfill a social purpose.
Their object is to compel a man to perform the moral obligation which he owes
to society in respect of his wife and children.
By providing a simple, speedy but limited relief they
seek to ensure that the neglected wife and children are not left beggared and
destituted on the scrap-heap of society and thereby driven to a life of
vagrancy, immorality and crime for their subsistence. Thus. Section 488 is not
intended to provide for a full and final determination of the status and
personal, rights of the parties. The jurisdiction conferred by the Section on
the Magistrate is more in the nature of a preventive rather than a remedial
jurisdiction; it is certainly not punitive......" (underlining supplied)
In the
aforesaid case the Apex Court was dealing with the claim for maintenance of a
wife.
19. Learned
counsel arguing for the petitioners submitted that under Muslim Personal Law
daughters are legally entitled to be maintained by the father till they get
married even where the marriage takes place much after their attaining puberty.
They further submitted that application of personal law is not excluded by
the provisions of Section 488 Cr. P. C. and, in fact, the law is settled
that personal law can be read together with the provisions relating to
maintenance contained in the Code.
In support of
this submission, the learned counsel, besides referring to the relevant
passages from Summarised Sahi A1-Bukhari, (a compilation of holy sayings of the
holy Prophet) translated by Dr. Muhammad Muhsin Khan, Islamic University, (Kingdom
of Saudi Arabia); the Islamic Law on Maintenance of Women, Children, Parents
and other relatives by Dr. M. Afzal Wani (1995 Edn); Tahir Mahmood's Book, the
Muslim Law of India (Third Edition 2002); The Hedaya, a commentary on the
Islamic laws translated by Charles Hamilton (Reprint Edition 1994), cited and
relied upon Yanunabai v Anantrao AIR 1988 SC 644; Jagdesh Jugtawat v
Manju Lata (2002) 5, SCC 422; Fazi v All Mohd 1975 Cri L.J. 1228
:1974(V) J&K LR730 and Noor Saba Khatoon v Mohd Quasim AIR 1997 SC
3280.
The learned
counsel canvassing for the Reference argued that the obligation of a Muslim
father, having sufficient means, to maintain his female children till they get
married is absolute, notwithstanding the fact that they might be living with
the divorced wife.
They invited
the attention of the Court to Clause (d) of Sub-section (1) of Section 4 of the
Sri Pratap Jammu and Kashmir Laws (Consolidation) Act, 1977 (1920 AD)
(hereinafter referred to as "the Consolidation Act)", and submitted
that by virtue thereof, the Personal Law has been made applicable in the State
to be administered by the Civil and Criminal Courts in Jammu and Kashmir State
in relation to matters specified therein, which includes maintenance.
On the other
hand, learned counsel for the respondent argued that the judgment in Noor
Saba Khatoon v Mohd Quasim (supra) has been passed by the Apex Court in
context of the provisions of Muslim Women (Protection of Rights on Divorce) Act
of 1986 which is not applicable to the State of Jammu and Kashmir.
His second
submission is that Clause (d) of Sub-section (1) of Section 4 of the
Consolidation Act does not include maintenance and, even if personal law is to
be read together with the provisions of Section 488 Cr. P. C. the Court cannot
import the term "maintenance" in the relevant provision of the
Consolidation Act which is not there.
20. On the
question whether personal law can be read with the provisions of the Code of
Criminal Procedure providing for maintenance, their lordships of the Supreme
Court in Yamunabai v Anantrao AIR 1988 SC 644 held as under:
"The attempt to exclude altogether the personal
law applicable to the parties from consideration is improper.
Section 125 has been enacted in the interest of a
wife, and one who intends to take benefit under Sub-section (1)(a) has to
establish the necessary condition namely, that she is the wife of the person
concerned. This issue can be decided only by a reference to the law applicable
to the parties. It is only where an applicant establishes her status or
relationship with reference to the personal law that an application for
maintenance can be maintained. Once the right under the section is established
by proof of necessary conditions mentioned therein, it cannot be defeated by
further reference to the personal law. The issue whether the section is
attracted or not cannot be answered except by reference to the appropriate law
governing the parties."
In Noor Saba
Khatoon v Mohd Quasim AIR 1997 SC 3280 the Supreme Court was dealing with a
similar question. Their lordships held as under:
"... the obligation of a Muslim father to
maintain the minor children is governed by Section 125 Cr. P.C. and his
obligation to maintain them is absolute till they attain majority or are able
to maintain themselves, whichever date is earlier. In the case of female
children this obligation extends till their marriage. Apart from the statutory
provisions referred to above, even under the Muslim Personal Law, the right of
minor children to receive maintenance from their father, till they are able to
maintain themselves is absolute."
21. In the
aforesaid judgment, their lordships of the Supreme Court also quoted a passage
from the Book "Statute Law relating to Muslims in India (1995 Edn.) in
relation to Section 125 Cr. P. C. written by Professor Tahir Mahamood. The
relevant portion of the said passage, as quoted in the judgment is reproduced
hereunder:
"By Muslim Law maintenance (nafaqa) is a birth
right of children and an absolute liability of the father. Daughters are
entitled of maintenance till they get married if they are bakira (maiden), or
till they get remarried if they are thayiba (divorcee/widow). Sons are entitled
to it till they attain bulugh if they are normal, and as long as necessary if
they are handicapped or indigent. Providing maintenance to daughters is a great
religious virtue. The Prophet had said:
'Whoever has daughters and spends all that he has on
their upbringing well, on the Day of judgment, be as close to me as two fingers
of a hand.'
If a father is poverty stricken and cannot therefore
provide maintenance to his children while their mother is affluent, the mother
must provide them maintenance subject to reimbursement by the father when his
financial condition improves."
22. The Apex
Court supplied emphasis to the aforesaid passages from Tahir Mahamood's book.
It was further held as under:
"10. Thus, both under the personal law and the
statutory law (Section 125 Cr. P. C.) the obligation of a Muslim father, having
sufficient means, to maintain his minor children, unable to maintain
themselves, till they attain majority and in case of females till they get
married, is absolute, notwithstanding the fact that the minor children are
living with the divorced wife.
11. Thus, our answer to the, question posed in the
earlier part of the opinion is that the children of Muslim parents are entitled
to claim maintenance under Section 125 Cr. P. C. for the period till they
attain majority or are able to maintain themselves, whichever is earlier, and
in case of females, till they got married, and this right is not restricted,
affected or controlled by divorcee wife's right to claim maintenance ... In
other words Section 3(1)(b) of the 1986 Act does not in any way affect the
rights of the minor children of divorced Muslim parents to claim maintenance
from their father under Section 125 Cr. P. C. till they attain majority or are
able to maintain themselves, or in the case of females, till they are
married,"
23. In Jagdesh
Jugtawat v Manju Lata (supra) again a similar question, arising out of
Section 125 of Cr. P. C. and Section 20(3) of Hindu Adoptions and Maintenance
Act, came up for consideration before the Supreme Court. Relying on the
principles laid down in Noor Saba Khatoon v Mohd. Quasim (supra) the
Apex Court observed as under:
"Applying the principle to the facts and
circumstances of the case in hand, it is manifest that the right of a minor
girl for maintenance from parents after attaining majority till her marriage is
recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act..."
In this view
of the matter, not only the Muslim Personal Law, but also the provisions of
Hindu Adoptions and Maintenance Act can be read together with the provisions of
Section 488 Cr. P. C.
24. Learned
counsel for the respondent argued that Clause (d) of subsection (1) of Section
4 of the Consolidation Act of 1977 (1920 AD) does not make a mention of
maintenance, therefore, it has to be taken that Personal Law in relation to
maintenance has not been made applicable in the State of Jammu and Kashmir.
Before referring to the relevant provision of the Consolidation Act, 1920 AD,
it would be appropriate to mention here that in Fazi v Ali Mohd 1975 Cri
L. J.1228:1974 (V) J&K LR 730 a question arose before the Division Bench of
this Court relating to maintenance of a divorced wife during the period of
"iddat". It was argued before the Court that the award of maintenance
during Iddat is only a personal right of a wife available to her under the Mohammedan
Law, and she can get this right only in a civil court. It was further argued
that for the purpose of Section 488 Cr. P. C. the wife, after being divorced,
would not be a wife in the eye of law and, therefore, Section 488 would have no
application. Adverting to this argument, the Division Bench of this Court held
as under:
"We are, however, unable to agree with this
contention. Section 488 of the Code of Criminal Procedure is not subordinate to
any personal law but a general law on the subject which has to be regulated by
personal law and the circumstances. If the Mohammedan Law confers a right of
maintenance during the period of Iddat then such a legal right can be enforced
under Section 488 of the Code of Criminal Procedure during that period. Section
4(1)(d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 runs
as under:
'(d) in questions regarding succession, inheritance,
special property of females, betrothals, marriage divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills, legacies, gifts,
waqf, partitions, casts or any religious usage or institution, the rule of
decision is and shall be the Mohammedan Law in cases where the parties are
Mohammedan......'
By force of Sri Pratap Jammu and Kashmir Laws
Consolidation Act (1977) since the wife is entitled to maintenance during the
period of Iddat after divorce has been made, the criminal court acting under
Section 488 of the Code of Cr. Pr. becomes empowered to grant this maintenance
during this limited period."
25. It is thus
seen that if the personal law confers the right to maintenance then such a
legal right can be enforced under Section 488 of the Code of Criminal
Procedure. Therefore, the question is no more re integra. In the case, Fazi
v Ali Mohd (supra), the Division Bench of this Court has noticed Clause (d)
of Sub-section (1) of Section 4 of the Consolidation Act of 1920 AD and applied
personal law by force of the said provision of Consolidation Act. This should
answer the argument of learned counsel for the respondent that term maintenance
is not mentioned in Clause (d) of Sub-section (1) of Section 4 of the
Consolidation Act 1920 AD.
Even so, we
may observe that the term "religious institution", occurring in the
aforesaid provision of the Consolidation Act 1920 does not mean a temple,
mosque or shrine. It means an established law, custom or practice. Obviously,
established law has reference to all established personal laws, which include
the law relating to entitlement to or grant of maintenance. It is not the case
of the respondent that Muslim Personal Law does not govern the subject of
maintenance. In fact, the Books on the Muslim Law cited by the learned counsel
for the petitioners and noticed by us in this judgment in clear terms describe
the absolute nature of the duty of a father to maintain major unmarried daughters
till they are married. That apart, the term "family relations"
occurring in Clause (d) of Sub-section (1) of Section 4 of the Consolidation
Act embraces the liability to maintain. The argument of learned counsel for the
respondent in this behalf is, accordingly, answered and over-ruled.
26. We have
carefully gone through the judgment of the learned Single Judge of this Court
passed in Mala Sidiq v Dilshada Banoo (supra).
In that case,
the learned Single Judge after noticing the judgments of the Supreme Court in Noor
Saba Khatoon v Mohd Quasim and Jagdesh Jugtawat v Manju Lata (supra),
observed that the provisions of Muslim Women (Protection of Rights on Divorce)
Act, 1986 do not extend to the State of Jammu and Kashmir, therefore, the same
could not be read together with Section 488 of the Code.
Similarly, the
learned Single Judge observed that in case of such Hindu girl also the position
in respect of her right of maintenance shall remain the same and it would not
be permissible to read the provisions of Hindu Adoption and Maintenance Act
together with Section 488 as was done by the Supreme Court in Jagdesh
Jugtawat v Manju Lata (supra), for the reason that in that case the basic
order in issue had been passed by a Family Court. The learned Single Judge,
after noticing Section 7 of the Family Courts Act observed as under:
"In view of the provisions of Section 7, the
Family Court possessed jurisdiction to grant maintenance under Civil Law as
well as under Section 125 Cr. P.C. corresponding to Section 488 of J&K Cr.
P.C. and, therefore, it appears that their lordships in Jagtawat's case (supra)
held that Section 20(3) of Hindu Adoption and Maintenance Act, could be applied
for granting maintenance under Section 125 Cr. P.C. But in J&K No
jurisdiction akin to Section 7 of Central Family Court's Act exists. A Judicial
Magistrate in J&K can exercise jurisdiction for granting maintenance only
under the provisions contained in Section 488 Cr. P.C. under which right of
children for maintenance is restricted upto the attainment of majority or
ability to maintain themselves, whichever is earlier."
27. Family
Courts are a creation of Family Courts Act. Sub-section (1) of Section 7 of the
Family Courts Act, says that a Family Court shall have and exercise all the
jurisdiction exercisable by any District Court or any subordinate civil court
under any law for the time being in force in respect of suits and proceedings
of the nature referred to in the explanation appended thereto. Clause (f) under
the Explanation referred to by the learned Single Judge, which reads
"suits or proceedings for maintenance", does not refer to the
"Order for maintenance of wife, children and parents" as contained in
Section 125 of the Central Procedure Code.
Clause (f)
under the Explanation in Section 7 of the Family Courts Act has reference to
such proceedings as may be initiated for grant of maintenance by any person by
resort to civil law, including Section 20(3) of the Hindu Adoptions and
Maintenance Act or Section 3(1)(b) of the Muslim women (Protection of Rights on
Divorce) Act, 1986, Clause (f) does not construe or contemplate that the Family
Court should read Section 125 of the Code together with any proceeding brought
before the Court in its civil jurisdiction, nor has the Supreme Court
interpreted or construed it to mean so.
In fact, the
case before the Supreme Court in Noor Saba Kkatoon v Mohd Quasim (supra)
had arisen out of proceedings under Section 125 of the Central Code of Criminal
Procedure. So was the case in Jagdish Jugtawat v Manju Lata (supra). In
both cases, the provisions contained in the law reflecting the liability of a
father under personal law to maintain his major unmarried daughters, were read
together with the provisions of Section 125 of the Code.
It is one
thing to read a provision of personal law together with Section 125 of the Code
in proceedings initiated under the latter provision and another thing to read
Section 125 Cr. P.C. in proceedings brought before a court under either of the
aforesaid two Acts. These are two distinct and incompatible situations.
Section 125 of
the Central Procedure Code, as is the base with Section 488 of Cr. P.C. in
J&K, is an independent provision, not subordinate to any other law.
This is
further clarified by Sub-section (2) of Section 7 of the Family Courts Act,
which reads as under:
"(2) Subject to the other provisions of this Act,
a Family Court shall have and exercise.
(a) the jurisdiction exercisable by a Magistrate of
the first class under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973;"
28. A plain
reading of Clause (a) of Sub-section (2) of Section 7 of the Family Courts Act
reveals that a Family Court, though a Civil Court, is conferred with
Magisterial powers exercisable under Section 125 of the Central Code of Criminal
Procedure. In other words, while dealing with proceedings under Section 125 Cr.
P.C., a Family Court under the Family Courts Act outside State of Jammu and
Kashmir does not act as a Civil Court, but acts as a Magistrate of 1st Class.
The Family Court may have some other civil jurisdiction conferred on it, but
that fact by itself does not create any distinction between such a Court and a
Judicial Magistrate of 1st Class exercising jurisdiction under Section 488 of
the Code in the State of Jammu and Kashmir. In the State of Jammu and Kashmir
also almost every Judicial Magistrate has a dual function: one under the
ordinary Civil Law and the other under Criminal Procedure Code. Therefore,
whether the order of maintenance is passed by a Family Court acting as a
Magistrate of the 1st Class in exercise of its jurisdiction under Section 125
of the Central Code of Criminal Procedure or by a Judicial Magistrate, 1st
Class exercising powers under Section 488 of the J&K Code of Criminal
Procedure, the fact remains that both exercise the Magisterial powers and on
that count no distinction can be made in the application of law settled by the
Apex Court.
29. As to the
application of Muslim Women (Protection of Rights on Divorce) Act, 1986 to the
State of Jammu and Kashmir, the question is not whether the provisions of the
aforesaid Act extend to the State of Jammu and Kashmir or not. The real
question is whether the Personal Laws can be applied by the Criminal Courts in
proceedings initiated under Section 488 Cr. P.C. in the State of Jammu and
Kashmir.
We have
already quoted the judgment of the Division Bench of this Court in Fazi v Ali
Mohd (supra) in which a portion of Clause (d) of Sub-section (1) of Section
4 of Consolidation Act has been quoted. We deem it appropriate to quote
hereunder the full text of the aforesaid provision of law insofar as it is
relevant:
"4. Laws in force. -- (1) The Laws administered
and to be administered by the Civil and Criminal Courts of the State of Jammu
and Kashmir are and shall be as follows :
(a)..
(b) ...
(c) ...
(d) in question regarding succession, inheritance,
special property of females, betrothals, marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills, legacies, gifts,
waqf, partitions, castes or any religious usage or institution, the rules of
decision is and shall be the Mohammedan Law in cases where the parties are
Mohammedans and the Hindu Law in cases where the parties are Hindus, except in
so far as such law has been, by this or any other enactment, altered or
abolished or has been modified by any custom applicable to the parties
concerned which is not contrary to justice, equity and good conscience and has
not been, by this or any other enactment, altered or abolished and has not been
declared to be void by any competent authority."
30. The
aforesaid provision makes it unambiguously clear that not only Muslim Personal
Law, but Hindu Law as well, is to be administered by the Civil and Criminal
Courts. Therefore, following the ratio of the judgments of the Supreme Court in
Noor Saba Khatoon v Mohd Quasim and Jagdesh Jugtawat v Manju Lata
(supra) as also the judgment of this Court in Fazi v Ali Mohd (supra),
Personal Laws can be and have to be read together with the provision of Section
488 of the Code of Criminal Procedure in Jammu and Kashmir State.
In that view
of the matter, we are of the view that the learned Single Judge in Mala
Sidiq v Dilshada Banoo (supra), though noticed the right position of law,
but did not apply the same correctly, apparently, on account of inadequate
assistance rendered to the Court by the concerned counsel, in as much the
Consolidation Act of 1920 was not brought to the notice of the Court.
31. In view of
all what has been discussed and observed above, the judgment in Mala Sidiq v
Dilshada Banoo does not lay down the correct law and is, therefore, hereby
overruled. We hold that major unmarried daughters are entitled to claim
maintenance from their father in summary proceedings under Section 488 of the
Code of Criminal Procedure.
32. On merits
of the present case, learned counsel for the respondent submitted that while
deciding the application for enhancement made by the petitioners under Section
489 Cr. P.C. the learned Chief Judicial Magistrate took note of the relevant
facts and material brought on record and, on assessment thereof, ordered
enhancement of maintenance from Rs. 500 to Rs. 1500 in respect of the two
daughters, namely, Lubna Mehraj and Hena Mehraj, and from Rs. 500/ to Rs. 1000
in respect of son, Uvais Mehraj.
According to
the learned counsel, there was no fresh material available, or brought on record,
before the learned Additional Sessions Judge warranting further enhancement.
Therefore, according to the learned counsel, the proposal for enhancement made
by the learned Sessions Judge is unwarranted, unreasonable and excessive. He
also invited the attention of this Court to the facts which are presently
attendant to each of the petitioner. The learned counsel also argued that
maintenance should be construed to mean the minimum bare needs which would not
include luxuries of life or higher education.
33.
Maintenance includes expenses incurred on education of children especially
when, from the circumstances and status of the family, a reasonable course of
education is indispensable in order to earn living. Otherwise also, when
propensity of a child for education is gathered from evidence, that would
constitute a reasonable circumstance to be taken note of while awarding
maintenance. We have already observed in this judgment that maintenance cannot
be limited to food and clothing alone. In the present case, the respondent is
an Engineer by profession, meaning thereby that education in the family is
indispensable.
34. One of the
daughters of the respondent, namely, Lubna Mehraj is admittedly undergoing
B.D.S. The other daughter, namely, Heena Mehraj was undergoing three years'
diploma in Engineering and Electronics.
Respondent has
filed an affidavit before this Court stating therein that his daughter Hena
Mehraj completed the aforesaid three years' course in March, 2002. He has, in
fact, produced photocopy of a certificate dated 30.8.2003 issued by the
Registrar, SSM Polytechnic Divar Parihaspora, Kashmir, wherein it is stated
that Heena Kanth d/o Mr. Mehraj-ud-Din Kanth has completed her three years
diploma in Electronics and Communication in the year May - June 2002 and that
she was a student of the institute under Roll No. 1143 upto March, 2002. This
affidavit was permitted to be taken on record. On the other hand, the
petitioners also produced photocopy of a certificate dated 2nd August, 2003
purporting to be from Manager Training National Institute of Computer
Technology. In this Certificate it is stated that the said petitioner is
undergoing DOEACC 'O' Level Computer Course through the Institution. However,
we are not taking either of these certificates into consideration. Any new
circumstance that has come into existence after order dated 4th September, 2000
was passed, can be brought to the notice of the learned Magistrate in
appropriate proceedings for variation of the awarded amount. The son, namely,
Uvais Mehraj, i.e., petitioner No. 3, is a School going child.
During the
course of cross-examination, the respondent before the trial court admitted
that the maintenance that was being paid to them, i.e., Rs. 500 each, was
insufficient. He also admitted that he did not pay any admission fee to
petitioners 1 and 2 at the time they were admitted to professional Colleges.
The learned Magistrate, after hearing counsel and on consideration of evidence,
oral and documentary, brought on record, enhanced the maintenance in respect of
each of the petitioners. It may be mentioned here that the gross salary per
month of the respondent is shown to be Rs. 15,982. Out of this amount, an
amount of Rs. 8000 is being deducted from him on account of withdrawals made by
him from his G. P. Fund. Copy of the sanction order dated 13th September, 2001
is on record of the file. It depicts that the respondent has withdrawn an
aggregate amount of Rs. 3,78,600 from his G. P. Fund account which has to be
recovered from his pay in 48 monthly instalments of Rs. 8000 each commencing
from September, 2001. The amount so withdrawn by the respondent also includes
an amount of Rs. 66,000 which the respondent had to pay towards arrears of
maintenance earlier ordered by the learned Magistrate. In any case, this
liability of the respondent would last only till September, 2005. Rs. 625/ -
are deducted from his pay towards Income-tax each month. Besides, he is
contributing an amount of Rs. 2000 towards his G. P. Fund account each month,
leaving a net salary of Rs. 5570. It has also come on record that out of this
net salary of Rs. 5570/ he is paying the maintenance
allowance
towards his children, i.e., the petitioners.
A government
servant under the relevant rules is under a mandate to contribute towards his
G. P. Fund account a minimum amount equivalent to 6% of his pay. Given the
salary that the respondent is receiving, he is required to contribute around
Rs. 900 towards his G. P. Fund. That means he is optionally contributing an
amount of around Rs. 1,100 towards his G. P. Fund. The leaned Chief Judicial
Magistrate has taken note of these facts and observed that respondent could
approach the Drawing and Disbursing Officer for reducing the rate of Rs. 8000
monthly instalments being deducted from him towards recoveries of the G. P.
Fund advance withdrawn by him. The learned Sessions Judge in his order of
Reference has observed that "the respondent admittedly is an engineer so
in my opinion he has sufficient means that is he can raise the loan or he can
obtain the G. P. Fund advances, the way he has obtained it earlier for the
recovery of which Rs. 8000 are deducted from his salary. Furthermore instead of
subscribing Rs. 2000 he can reduce subscription to the permissible limit".
No special circumstance other than what was considered by the learned
Magistrate while passing the order dated 4th September, 2000 has crept in to
justify any further enhancement ordered by the learned Magistrate. Therefore,
we feel that the submission of learned counsel for the respondent is not wholly
misplaced, more so when the learned Sessions Judge as well as the learned
Magistrate have noted the fact that the respondent is presently drawing only
Rupees five thousand and odd as his salary and rest of the amount, is going
towards the deductions and contributions. The learned Magistrate, while
ordering enhancement, has already observed that the respondent could approach
the concerned Drawing and Disbursing Officer for reduction of the rate of
deductions being made from his pay towards liquidation of the G. P. Fund
advance taken by him. We feel that the learned Magistrate has taken reasonable
care of every aspect of the matter.
Therefore, the
proposal made by the learned Additional Sessions Judge is excessive.
35. The
Reference is, accordingly, answered. However, we leave the petitioners free to
approach the learned Chief Judicial Magistrate, as and when they feel any
change in the circumstances, necessitating further enhancement in the
maintenance allowance. The trial court records be returned to the concerned
courts forthwith.
