Jammu and Kashmir High Court: Sanjay Dhar, J., addressed the instant petition against the order of Judicial Magistrate, Bandipora, whereby the Magistrate had returned the petition seeking maintenance stating it to be beyond the jurisdiction of the Trial Court. The Bench remarked,
“If at all there was any ground for returning the petition to the petitioners, the same should have been done at the very first hearing, not after proceeding with the case for more than six months, that too in a case where a destitute lady had approached the learned Magistrate for grant of maintenance.”
The petitioner, who was the wife of the respondent and was the mother of a minor son. The petitioner approached the Court of Chief Judicial Magistrate, Bandipora, with a petition under Section 488 of CrPC seeking maintenance from the respondent. The petition was transferred by CJM to Judicial Magistrate 1st Class, Bandipora, for disposal.
The Trial Court had observed that the petitioner at the time of filing the petition were residing at Hajin, Bandipora whereas the respondent was residing at Grath Saloora, Ganderbal, and according to the magistrate, neither Hajin, Bandipora nor Grath Saloora, Ganderbal fall within his territorial jurisdiction. The Magistrate had further observed that it was not the case of the petitioners that they at any point in time last resided within the jurisdiction of the Trial Court. Therefore, the Trial Court held that it did not have territorial jurisdiction to entertain the petition and, accordingly, the same was directed to be returned to the petitioner.
Observation and Analysis
The Bench, after going through the provisions of Section 488(8) of the J&K CrPC, which is in pari material with Section 126(1) of Central CrPC opined that proceedings for maintenance could be filed by a wife against her husband either in the district where she resides or in the district where the husband resides and also where she had last resided with her husband. The provisions of Section 488(8) read as under:
“488(8)Proceedings under this section may be taken against any person in any district where he is or his wife resides or where he last resided with his wife, or as the case may be, the mother of the illegitimate child.”
Noticing that the petition was transferred to the Trial Court by the orders of CJM, Bandipora, who was vested with jurisdiction over whole of the District Bandipora and that Section 192 of J&K CrPC gave jurisdiction to CJM to transfer any case of which he had taken cognizance, for inquiry or trial, to any Magistrate subordinate to him, the Bench opined,
“When a Chief Judicial Magistrate transfers a petition or a complaint to a Magistrate subordinate to him, the said subordinate Magistrate is conferred with the jurisdiction to entertain and try such complaint or petition.”
Hence, the Court reached the findings that the Magistrate, while passing the impugned order, had ignored the provisions contained in section 192(2) of the J&K CrPC. Also, the Court vehemently criticised the fact that, the petition was pending in the Court of Judicial Magistrate for about six months and the Trial Court had put the hapless petitioner in a precarious position by returning the petition citing lack of jurisdiction.
Consequently, it was held that the impugned order of the Trial Court suffered from grave illegality as the same had been passed in disregard of the provisions contained in Section 192 of the J&K CrPC and, therefore, was unsustainable in law. Hence, the impugned order was set aside with the directions to the Trial Court to entertain and dispose of the petition filed by the petitioners with utmost promptitude in accordance with the law.[Masooda Begum v. Mohammad Ashraf Dar, 2021 SCC OnLine J&K 163, decided on 03-03-2021]
Appearance before the Court by:
For the Petitioner: Adv. Aftab Ahmad
Kamini Sharma, Editorial Assistant has reported this brief.
