LUBNA MEHRAJ Vs. MEHRAJ UD DIN KANTH

JUDGEMENT

(1.) This Criminal Reference emanates from proceedings under section 488 read with Section 489 of the Code of Criminal Procedure. 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. Upon notice to the respondent, he filed objections before the learned Magistrate wherein he, inter alia, took a preliminary objection to the maintainability of the application. It was urged before the learned Magistrate that, since the two female petitioners had attained the age of majority, therefore, they were not entitled to claim maintenance as a matter of right. This preliminary objection was over-ruled by the learned Magistrate vide order dated 10th October, 2000. Against that order, the respondent herein preferred a Revision Petition before the learned Ist 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:

(2.) 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, 2005, 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. Apart from that, a public forum, namely, Care Concern Forum, Mirror Building, the Bund, Residency Road, Srinagar, stated to be a non-governmental organization, made an application, Cr. M. P. No.99/2003, seeking leave to intervene in the matter as, according to the forum, an important question of law of general public importance, having far reaching consequences, was involved in the matter. Mr. M. A. Qayoom, Advocate, representing the Kashmir Bar Association, Srinagar, also appeared before the learned Single Judge and sought leave to assist the Court on the same ground. The leave sought was granted. Notice was also directed to be issued to learned Advocate General to assist this Court. The learned Single Judge (one of us), being of the opinion that the matter should be heard by a Division Bench, accordingly, in terms of order dated 21st August, 2003, ordered so. It is in these circumstances that this Criminal Reference has come up for hearing before us.

(3.) We have heard M/s A. Haqani and G. A. Lone, learned counsel appearing for the parties. We have also heard Mr. A. H. Naik, learned Advocate General, and M/s Z. A. Shah and M. A. Qayoom, Advocates, who, as said above, opted to assist the Court.