NIGEEN AHMAD CHAPOO Vs. ADIL NIGEEN

JUDGEMENT

(1.) THE grievance projected by the petitioner is that the respondents have filed petition under Section 488 Cr.P.C for grant of maintenance before the Court of ld. Chief Judicial Magistrate, Shopian which is an abuse of process of law on the grounds taken in the petition. Along the petition, an application for grant of interim relief was filed. Respondent - Petitioner herein filed objections and after hearing both the parties, learned Chief Judicial Magistrate, Shopian granted the interim application and directed the petitioner herein to pay Rs. 900/ -and 700/ - as interim maintenance monthly. Feeling aggrieved, the petitioner/non -applicant challenged the said order by the medium of the revision petition before the ld. Sessions Judge, Pulwama. Revision Petition came to be dismissed vide order dated 30.04.2007. Feeling aggrieved of the said order, petitioner has filed this petition. The main argument of learned counsel for the petitioner is that the respondents are major, thus the petition under Section 488 Cr.P.C is not maintainable. The said question is a question of fact which cannot be determined at this thresh hold stage. The proceedings are at its infancy i.e, why the trial court has rightly observed that the respondents are minor is yet to be proved. It is profitable to reproduce last para of the order dated 24.02.2007 passed by the ld. CJM Shopian as under: "Given regard to the aforesaid discussion and the authority (supra), I am of the considered opinion that at this stage a prima facie case does exists in favour of the petitioners for the grant of interim maintenance and the plea of the non -applicant that 1st. petitioner is major can not perse without being proved, defeat the claim of the 1st petitioner for grant of interim maintenance. The controversy regarding the majority of the 1st. petitioner is purely factual and the parties on their respective stands may lead evidence in the main proceedings. Keeping in view the dependency of the non -applicant, his income and the necessaries of the petitioners, non -applicant is hereby ordered to make monthly maintenance at the rate of Rs. 900/ - in favour of the 1st. petitioner and Rs. 700/ -in favour of the IInd petitioner from the dale of presentation of the application. The interim maintenance shall be paid by the non -applicant by the 10th of every month next following that for which the amount falls due to the petitioners. However, the observations made hereinabove are limited only to the extent of instance petition and shall not effect the disposal of the main proceedings in any manner. Application is accordingly disposed of and be made part of the file."

(2.) THE revisional court was of the opinion that trial court has not committed any illegality in passing the order.

(3.) THE exercising of powers under Section 561 -A Cr.P.C is an exception and not the rule. This provision of law does not confer any new powers on the High Court. It prescribes following three circumstances under which inherent jurisdiction can be exercised by the High Court: - (1) to give effect to an order under the Code; (2) to prevent abuse of the process of Court; and (3) to otherwise to secure the ends of justice.