J&K High Court : Adult, Able-Bodied Unmarried Daughters Not Entitled to Maintenance Under S. 488 CrPC
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh at Srinagar, Single Bench of Justice Rahul Bharti, has allowed a petition filed under Section 482 of the Code of Criminal Procedure, 1973. The petition was filed by a senior citizen challenging concurrent maintenance orders passed by the Judicial Magistrate 1st Class, Anantnag, and later affirmed by the Principal Sessions Judge, Anantnag. The orders had directed the petitioner to pay maintenance to his two major unmarried daughters.
The High Court held that the orders were legally unsustainable under Section 488 of the Jammu and Kashmir Code of Criminal Procedure, Svt. 1989. The judgment recorded: "both the orders are held to be illegal and are hereby set aside."
The petitioner, Abdul Raheem Bhat, initiated the petition after being directed by a Judicial Magistrate to pay maintenance to his two daughters. The circumstances leading to this order involved two separate sets of proceedings under Section 488 of the J&K CrPC, Svt. 1989. The first proceeding was instituted on 10.07.2014 by the petitioner’s two daughters, Beauty Jan and another respondent, joined by the petitioner’s son. The maintenance application was registered as File No. 17/Jeem and sought financial maintenance from the petitioner.
At the time of the filing, all three children of the petitioner were of majority age. The petitioner claimed that he himself was dependent on his son for sustenance and that he was not in a financial position to provide maintenance. Consequently, the petitioner initiated a separate maintenance proceeding on 31.12.2014 against his son under the same statutory provision. This petition was registered as File No. 54/M before the same Judicial Magistrate 1st Class, Anantnag.
In the proceeding initiated by the petitioner, the Magistrate issued an order dated 28.08.2017 allowing the petition and directing the petitioner's son, Sameer Ahmad Bhat (Respondent No. 3), to pay Rs. 2000 per month as maintenance to the petitioner. The Magistrate recorded a finding that the petitioner was "unable to maintain himself."
Meanwhile, the proceeding filed by the daughters was pending adjudication and was ultimately decided after almost five years. On 09.04.2019, the Judicial Magistrate passed an order allowing the daughters’ petition and directed the petitioner to pay monthly maintenance of Rs. 1200 each to his two major unmarried daughters, with effect from the date of filing i.e., 10.07.2014.
Aggrieved by the order of 09.04.2019, the petitioner filed a criminal revision petition, numbered 32/N, before the Principal Sessions Judge, Anantnag. The Sessions Court dismissed the revision petition on 26.02.2021, thereby affirming the Magistrate's order. It was this dismissal that led the petitioner to approach the High Court under Section 482 CrPC.
The petitioner contended that the maintenance awarded to his major daughters was without jurisdiction, as Section 488 of the J&K CrPC applied only in cases where the major children were unable to maintain themselves due to mental or physical disability. The petitioner submitted that there was no such disability in the case of his daughters, and therefore, the lower courts’ orders were legally invalid.
The respondents, including the daughters who had initiated the proceedings, were unrepresented before the High Court during the hearing of the petition.
The High Court examined the statutory scheme under Section 488 of the Jammu and Kashmir Code of Criminal Procedure, Svt. 1989, which was the prevailing law at the time of the dispute. The provision permits a Magistrate to order maintenance under defined categories, including to:
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
- 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
- his father or mother, unable to maintain himself or herself.
The High Court observed:
"A bare perusal of section 488 would show that the two unmarried daughters of the petitioner, being of major age but suffering no physical/mental abnormality or injury rendering them unable to maintain themselves, were not supposed to invoke section 488 Cr.P.C. by any stretch of claim or reasoning."
The court found that both the Judicial Magistrate 1st Class and the Principal Sessions Judge had failed to consider the statutory requirement under clause (c) of subsection (1) of Section 488, which mandates a condition of physical or mental disability in the case of major children seeking maintenance. It recorded that the maintenance orders were passed in disregard of this essential legal condition.
Justice Rahul Bharti recorded:
"This legal aspect of section 488 was missed out by both courts below by passing the orders against the petitioner in favour of the respondents No. 1 and 2 and therefore both the orders are held to be illegal and are hereby set aside."
The court further observed that the statutory language was unambiguous in setting out eligibility requirements for maintenance claims by children who have attained majority. The claimants in this case did not meet the threshold for invoking this provision.
In dismissing the orders, the High Court made no determination regarding any other form of financial or legal entitlement of the respondents outside the scope of Section 488.
The order dated 09.04.2019 passed by the Judicial Magistrate 1st Class, Anantnag, directing the petitioner to pay maintenance to his two daughters, and the order dated 26.02.2021 passed by the Principal Sessions Judge, Anantnag, upholding the same, were set aside.
Advocates Representing the Parties
For the Petitioner: Advocate Mr. G.N. Sofi.
Case Title: Abdul Raheem Bhat v. Beauty Jan and Ors.
Case Number: CRM(M)/177/2022
Bench: Justice Rahul Bharti
[Read/Download order]
