FIRDOUS AHMED BHAT Vs. MEHMOODA

JUDGEMENT

(1.) Through the medium of this petition 488 Cr. P. C. maintenance proceedings launched by wife and son of the petitioner, and presently on the file of the City Munsiff Magistrate, Srinagar are prayed to be quashed under S. 561-A Cr. P. C. In terms of the petition allegation and submission of the Ld. Counsel the application has been taken cognisance of, proceedings initiated and interim maintenance orders passed without jurisdiction inasmuch as the proceedings in this case are not taken against the husband in the district where he resides or last resided with his wife and child. The counsel cites 1999 SLJ 492 (JandK), for the preposition that the allegations as given in the application under section 488 Cr. P. C. are to be taken ex facie for exercise of jurisdiction by the Magistrate under S. 488(8) of Cr. P. C. While there can be no dispute with the preposition that the jurisdiction of the Magistrate to take cognizance and proceedings in a monthly allowance application for maintenance of wife and child under Chapter 36 Cr. P. C. is governed by express provision of sub-section 8 of S. 488 Cr. P. C. but for this jurisdictional sub-section to come into play, the basic facts have to be determined.

(2.) The Ld. Counsel of his own is candid enough to state that the husband, (applicant before this Court) has not objected thereto even though he has filed objections and his version of the case before the Magistrate incorporates no plea or objection to question the jurisdiction of the Magistrate to take the proceedings and pass the interim maintenance order. Certified copy of the application under S. 488 (Annexure-A) reveals that in para 3, a mention is made that the wife during pregnancy was forcibly sent back to her parents where she gave birth to her minor son Respondent No.2, Yet in the petition, it is nowhere mentioned that the wife and the child last resided with applicant outside District Srinagar. It cannot be conclusively held in absence of required facts and circumstances that the Magistrate seized of S. 488 Cr. P. C. proceedings necessarily lacks jurisdiction to take cognizance and initiate proceedings in this case. These basic facts have to be determined and adjudicated by the Magistrate within the parameters of self contained procedure provided by S. 488 in Chapter XXXVI of Cr. P. C. relating to maintenance of wives and child. It is not a case where the High Court is to give effect to an order under the Code or to prevent abuse of any process of Court. It is not even a case where orders are required to be passed by this court to secure the ends of justice. There is no merit in this petition which is dismissed. While dismissing the petition, it is pertinent to observe that the petitioner/husband is free to take the plea of lack of jurisdiction and alleged disability of the Judicial Magistrates court seized of the matter to take S. 488 Cr. P. C. maintenance proceedings in this case.

(3.) Mr. Malik, Ld. advocate, submits that petitioner has moved transfer application before the competent forum and in case the proceedings are transferred to some other Magistrate then he should have option to move such Magistrate in the matter. Obviously, the above observation of the court is applicable to the forum seized of the matter, in as-much-as, the question touches the basic jurisdiction of the Judl. Magistrate to take the proceedings.