Right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife as observed by the High Court of J&K, while citing the case-law of Hamida v. Ahmedullah Wani 2010 (7) JKJ HC-701, through the learned bench of Justice Vinod Chatterji Koul in the case of Farooq Ahmad Naikoo Vs Haseena and others [CRMc no.116/2019 (CRM(M) no.116/2019)].
In the petition, preferred under Section 561-A Cr. P. C, quashing of execution proceedings pending before the court of Judicial Magistrate, Pulwama (for short “Trial Court”) in the case titled Mst. Haseena and others v. Farooq Ahmad Naikoo, as also quashing of order dated 6th October 2017 passed by the Trial Court. He also seeks to quash of the order dated 23rd March 2018, passed by Additional District & Sessions Judge, Pulwama (for brevity “Revisional Court) in a Revision Petition titled Farooq Ahmad Naikoo v. Mst. Haseena and others.
According to the learned counsel appearing for the petitioner, impugned orders and judgment have been passed by both the Trial and Revisional Courts without an appreciation of facts and circumstances of the law. He states that the order dated 6th October 2017 has been passed in ex parte, denying the opportunity of being heard by the petitioner. He also avers that application seeking execution of the order dated 6th October 2017 is a gross abuse of process of court as it was brought to the notice of Trial Court that question of seeking execution of order awarding maintenance to respondents does not arise as respondents are and have been living with petitioner.
Against the order dated 6th October 2017, the petitioner preferred a Revision Petition before the Revisional Court. The said revision petition vide order dated 23rd March 2018 has been dismissed as it has been found that petitioner has a remedy in terms of proviso to Subsection 6 of Section 488 Cr.P.C., where under he can approach the Trial Court for setting aside ex parte proceedings.
The Hon’ble High Court taking into account the case set up by the petitioner and the submissions made by the learned counsel, dismissed the petition while stating that “Dominant and primary object of Section 488 is to give social justice to the woman, child, and infirm parents etcetera and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. It provides that any person, who has sufficient means to maintain himself, cannot deny maintenance to his wife and children. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to deserted wives. The right to seek maintenance by the wife from her husband is a statutory right and this right is guaranteed under Section 488 Cr.P.C. Right to get maintenance is not obliterated or affected by a custom nor would custom absolve the husband from his obligation to pay maintenance to his wife.”
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Judgment Reviewed by – Aryan Bajaj
