HAMIDA Vs. AHMED ULLAH WANI

JUDGEMENT

(1.) THERE has been a conflict of judicial opinion in this court about the obligation of a Khana Damad to pay maintenance to his wife and right of a Khana Nisheen daughter, to claim maintenance from her husband. Rasool Soofi vs. Mst. Asha Bibi, 38, P. L. R. J&K 104 is a Division Bench authority of this court, which has held that Khana Damad was not liable to pay maintenance to his wife and wife was not entitled to claim it on breach of condition. Breach of condition was that Khana Damad had left the house of his wifes parents. On the other hand Mohammad Ramzan Dar vs. Mst. Hameeda, 1977 JK LR 170 and Mst. Mughli Vs. Mohammad Parrey, 1977 JK LR 559 decided by two learned Single Judges of this court took a different view. They held that wife was entitled to claim maintenance notwithstanding the fact that 7he was Khana Nisheen daughter. The matter, therefore, came to be referred by Farooqi Chief Justice to the Full Bench for resolving the controversy, He, however, referred the whole case to the Full Bench but we desire to" decide only the obligation or otherwise of the husband to pay maintenance and entitlement or otherwise of the Khana Nishen daughter to claim maintenance from her husband. After that, the - case s -all be put up before any available Single Bench for decision on merits because appreciation of evidence and the validity of the order of the court below shall have to be considered by it and not by the Full Bench.

(2.) RIGHT to seek maintenance by the wife from her husband, whether Hindu or Muslim, is a statutory right. This right is guaranteed u/s 488 Cr. Pr. Code which reads as under so far as it concern this point:

(3.) FROM the perusal of the aforesaid statutory provisions, it would be clear that a husband is under an obligation to pay maintenance to his wife if the wife is entitled to get it on the basis of the statute. The statute disentitles her to receive maintenance if there are grounds for the same. Mere custom by which a husband is required to live in the wifes parents house can certainly not be a good ground for refusal to pay maintenance. If the husband is thrown out from the house of the wifes parent and is not allowed entry into the house if maintenance is claimed by the wife against him in such circumstances, the husband may claim wife to live with him even outside her parental house and on her refusal to do so court will positively go into the genuineness or otherwise of the wifes refusal to live with her husband outside her fathers house. By custom right to get maintenance is not destroyed because that is a statutory right. Each case shall have to be determined on its own facts.