V.K. Jhanji, Act. C.J.
1. This Criminal Reference emanates from proceedings under Section 488 read with Section 489 of the Code of Criminal Procedure.
2. 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 1st 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:
'Hence it is recommended that the order of the learned court below may be modified to the effect that enhanced maintenance allowance shall be Rs. 2000 instead of Rs. 1500 each in favour of the petitioner No. 1 and 2 and Rs. 1500 instead of Rs. 1000 in favour of the petitioner No. 3 to be payable from the date of order of the court below, i.e. from 4.9.2002...'
3. 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, 2003, 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.
4. 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.
5. 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.
6. In this Reference the most important question that falls for consideration is whether an unmarried major daughter is entitled to claim maintenance from her father in summary proceedings under Section 488 of the Code of Criminal Procedure. In this judgment, we will restrict our observations only in relation to that question. In fact, the learned counsel confined their arguments only in relation to the aforesaid question.
7. Learned counsel on both sides have laid great stress on the meaning and import of various words and phrases occurring and employed in Section 488 of the Code to canvass for and against the aforesaid question. We have given our careful and thoughtful consideration to the arguments advanced in this regard.
8. Chapter XXXVI of the Code of Criminal Procedure comprising Sections 488, 489 and 490 provides for maintenance of wives, children and parents. A cursory glance at the aforesaid provisions indicates that the same are intended to serve a social purpose and reaching out social justice to destitute wives, children and parents neglected by persons responsible for giving due attention to them. This Chapter constitutes a Code in itself under the caption 'Of the maintenance of wives, children and parents'. The caption serves as a preamble thereof and depicts the object of the enacting provisions of the Code contained thereunder. The recitals of the caption, as aforesaid, are indicative of the intention of the Legislature in enacting law aimed at remedying the neglect and refusal to maintain, inter alia, children irrespective of their age. However, clauses (b) and (c) of Sub-section (1) of Section 488, concerning the children, apparently, fall short of the indications that are gathered from the caption. Nevertheless, whereas Clause (b) limits the exercise of the power of the Magistrate to minor children, Clause (c) carves out an exception to the said limit and includes an unmarried major daughter in situations mentioned therein. It would be advantageous to quote herein below Section 488 of the Code, as amended by the Amending Act of 1998 :
'488. Order for maintenance of wives, children and parents:--
If any person having sufficient means neglects or refuses to maintain:
(a) his wife unable to maintain herself; or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself;
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding two thousand rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct; Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.'
9. The aforesaid amended provision contains an explanation to the effect that 'for the purpose of this Chapter, 'minor' means a person who, under the provisions of the Majority Act, Samvat 1977 is deemed not to have attained his majority.'
10. The opening words of Sub-section (1) of Section 488 are, 'If any person having sufficient means neglects or refuses to maintain'. The meaning assigned to the word 'neglect', as it occurs in the aforesaid provision, is disregard; pay little or no respect or attention to; slight, leave unnoticed; fail to give proper attention to; fail to take proper or necessary care of; leave unattended to or uncared for; fail to perform, leave undone, be remiss about; fail through carelessness or negligence to do, omit doing; cause (something) to be neglected (The New Shorter Oxford English Dictionary, Vol. 2, 1993 Edition). The word 'neglect' has aptly been explained to mean 'that a person has not done that which it was his duty to do'. (Blacks Law Dictionary, Seventh Edition). We are of the view that the meaning assigned to the word fully fits in the context in which it occurs in Sub-section (1) of Section 488 Cr. P.C. Therefore, the word 'neglect' not only means a tacit non-performance of such a duty by father but also embraces the duty of a father to maintain his unmarried major daughter. The phrase 'refuse to maintain' connotes an 'indication of unwillingness to maintain' and the indication need not be express. The language thus employed in these opening words of Sub-section (1) postulates not only the existence of absolute nature of such duty and responsibility of a father, but also a corresponding legally enforceable right of such a daughter.
11. Learned counsel for the respondent contended that even if it be assumed that father is liable to maintain his major unmarried daughter, that right cannot be enforced by the daughter in summary proceedings, like Section 488 of the Code. According to him, at best this constitutes a civil right and a daughter has to file a proper civil suit in a civil court to seek enforcement of her rights, if any, in this behalf. Civil remedy is not an alternate remedy but a right independent of Section 488 Cr. P. C. Cases are conceivable that a claimant may be entitled to more than the ceiling of maintenance provided under Section 488 Cr. P. C. Therefore, even if she is granted the maximum maintenance provided under Section 488 Cr. P.C., her right of civil remedy would survive. However, that right by itself will not disentitle her from seeking maintenance in summary proceedings, if she is otherwise found to be covered by Section 488 Cr. P. C. Two ancillary questions that arise for consideration, therefore, are: first, whether a major unmarried daughter is totally excluded from the purview of Section 488; and second, if not, in what circumstances she is entitled to claim maintenance under the provision of Section 488 Cr. P. C. from her father. In this behalf this Court is required to examine the import of Clause (c) of Sub-section (1) of Section 488 Cr.P.C.
12. As observed above, Clause (c) of Sub-section (1) creates an exception to the condition of being minor as envisaged in Clause (b). However, whereas Clause (b) includes all minor children, whether married or not, Clause (c) is not that wide in its texture. It indicates the situations and circumstances in which, if neglect or refusal to maintain on the part of father is proved, a major unmarried daughter can claim such maintenance in the summary proceedings. Therefore, a major unmarried daughter is not totally excluded from the purview of Section 488. The phrase 'any physical or mental abnormality or injury', however, assumes importance.
13. The phrase, as is evident, has been used in disjunctive sense, i.e., these prescribed physical and mental states are separable and are to be read alternatively and severally or may be present even jointly. The phrase, however, cannot be read as 'physical or mental injury' as being one circumstance and 'injury' as being the alternate circumstance, as is suggested. The conjunction 'or' occurring therein introduces alternatives, meaning 'one or the other'. When segregated, the above phrase would mean physical abnormality or Physical injury; mental abnormality or mental injury. As regards physical abnormality, physical injury or mental abnormality, a child may have any or all of these defects by birth or may suffer the same after birth. It is understandable that any of such physical or mental defects would be conspicuous and obvious and one can also comprehend the import and meaning of these terms. But what does a mental injury connote is the question.
14. Mr. A. H. Naik, learned Advocate general, and M/s. Z. A. Shah, M. A. Qayoom and A. Haqani, learned counsel arguing for the proposition, as involved, herein, submitted that the term 'mental injury' is not an injury of a physical nature or a mental disorder of the nature as mental abnormality that would conspicuously appear in a child. According to them, it has something to do with the emotional aspect of the child and that a child may even be emotionally hurt by neglect of her father to an extent that would constitute malicious injury or even a child abuse. They further submitted that the word 'neglect' has not to be construed in a limited sense of refusal to give food and clothing, but in a broader sense in context of the present day social aspirations and needs of children which include, affection, due care and concern, education etc. They further submitted when a child suffers neglect in context of all these basic needs, she is sure to be emotionally hit, reflecting adversely upon her mental faculty and that is mental injury. Mr. G. A. Lone, opposing this Reference, submitted that mental injury means nothing more than a mental infirmity by reason of which a female child may not be able to maintain herself. He further submitted that, in any case, when a major unmarried daughter claims maintenance, she has not only to prove mental injury but has even so also to establish before the court the reasons for her inability to maintain herself. In this regard he referred to the provision of Section 488 Cr. P.C. and various terms and phrases used therein.
15. The term 'mental injury' is not specifically or precisely defined in a conjunctive form either in the Code of Criminal Procedure or in the Oxford English dictionary or Webster's English dictionary, which are often used as an aid by courts in understanding the construction of a statutory word, term, phrase or provision. However, the term is relatable to the behavioural changes caused due to emotional disturbances in a child. When parental actions are disruptive or disturbing in relationship, and hostility between parents goes out of control, children are the first to suffer, and suffer the worst. When such relationship ends in a divorce, the children are under compulsion to choose between the two parents and are invariably thrown out along with mother. This causes an intense mental suffering which in turn reflects upon the mental behaviour of a child. If the child happens to be accustomed to father's affection, care and concern, which generally is the case, separation from the parent plays havoc with the mental process of the child. The loss of a parent thus has a lasting effect on a child's emotional growth. When it is followed by neglect in all conceivable spheres of child development on the part of the father, it takes in all the forms of omissions and emotionally hurts the child involved. This willful and unjustifiable infliction of pain and poignant suffering on a child cumulatively surfaces in the shape of behavioural or emotional disturbances. The treatment thus received by a child is known as emotional child abuse. Emotional child abuse is also referred to as verbal child abuse, psychological child abuse or 'mental injury of a child' (Webster's New World Medical Dictionary First Edition, 2001). Even otherwise, in the circumstances, the term 'mental injury' would mean a psychological wrong treatment. It is note worthy that word 'any' occurs before the physical and mental states mentioned in the provision, meaning thereby that mental injury need not be any specific one, but can be of any nature or kind. It is not that the mental injury thus inflicted on, or suffered by, a child should and would be similar to the mental abnormality as would be noticeable by every one. It may or may not require a specialized psychiatric treatment. A child suffering from mental injury can be as normal as any other person. It may, however, impair the cognitive abilities and adversely affect the personality development of the child. The change in behaviour may be noticeable only by those who have some amount of intimate association with such a child. And, it is a matter of common knowledge, parental or family therapy is the best treatment to a child suffering from mental injury. Family therapy in such circumstances would include prevention of and remedying the paternal neglect. The mental injury to be construed in such cases, therefore, is confined only to such emotional disturbances as are endured by a child in consequence of neglect and refusal to maintain her on the part of father.
16. According to the learned counsel for the respondent, the phrase 'where such child is by reason of introduces a conditional clause to the factum of inability to maintain. In other words, the contention of learned counsel is that the word 'where', occurring in the phrase, is to be read as 'if, meaning thereby, that existence or occurrence of mental injury in a major unmarried female child by itself would not entitle her to claim maintenance. She has to show that, by reason of such mental injury, she is unable to maintain herself. The proposition propounded by learned counsel for the respondent ex-facie is misconceived. The Clause in question starts with the word 'where'. The cardinal rule of construction of statutory language is that words and phrases of statutes are firstly to be construed in their ordinary meaning and, if that does not help, then they are to be construed according to the rules of grammar. The ordinary meaning of the word 'where' as an interrogatory adverb is 'in or to what place or position; in what direction or position.'
Obviously the statutory provision under reference does not relate to any place, position or direction nor is the provision interrogatory. The word 'where', as it occurs in the clause, has been used as a relative adverb, which means 'in a situation in which' which is equivalent to 'In the circumstances in which'. In any case, 'where' does not mean 'if.' This Court has no reason to import a word or a meaning which the Legislature has not used or put in the statutory provision. We are of the firm view that the language used is plain and there is no ambiguity arising from the language so employed in the provision under reference. Therefore, the simple meaning is to be assigned to the word 'where' occurring in the provision, which, as we have said above, does not mean 'if' but construes 'in a situation in which'. Reading Clause (c) thus in just a position with Sub-section (1), the provision does not admit of a construction that such a child has to show the reasons for inability to maintain herself with reference to and in context of such a physical or mental state. The emphasis is on the phrase 'neglect and refusal to maintain' and inability of the child to maintain itself, not on the reason for inability to maintain of a child suffering from any of the given physical or mental states. This construction is further supported by the other part of Sub-section (1) which says 'a Magistrate of the first class may, upon proof of such neglect or refusal.....' 'Such neglect' has to be read in context of the inability of the child to maintain herself.
17. It may be observed here that there was no such provision as Clause (c) in the pre-amended Code of 1989 (1933 AD). Section 488, as said earlier, was recast by the State Legislature in the year 1998 (Act No. IV of 1998). The wisdom of the legislature and the intent behind the amendment, obviously, has been to bring the law in pace with the present social order. Clause (c), like other clauses, has added new dimensions to the welfare enactments as are contained in Chapter XXXVI of the Code with the object of responding to the urgent social demands and to have some more immediate and visible impact on social reforms. The provision is aimed at not only remedying the neglect and refusal to maintain, but also, as settled by the Supreme Court, at preventing the ill and evil consequences of such child neglect and refusal to maintain. Such ill and evil consequences include vagrancy, immorality and resort to crime for sustenance. That being so, it could not be the intention of the legislature that a girl child should first develop any mental injury on account of neglect, which may further lead to serious complications, and then the preventive and remedial measures would operate. If preventive features are not read in the provision, then that would belittle the social purpose of the legislation and render it an antithesis to its very object. Section 488 Cr. P. C., as enacted, has to be read and construed having regard to its beneficent nature and cause of social justice assimilated therein. The pre-amended provision related to a period when people were educationally and economically weak to an extent that children would have to do with just two time coarse meals and a few shreds of cloth to cover their bodies. With the increase in educational consciousness and other allied factors and activities, the horizons of developmental thoughts among children have broadened. The law at hand cannot be construed in such a manner as would retard the administration of justice and favour perpetuation of social wrongs, moreso when the amendments in the law are recent and commensurate with the modern needs of the society. It would be apt to quote here the observations of the Supreme Court in Skamima Ara v. State of U. P. AIR 2002 SC 3551:
'.......... [Our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends.......'.
18. The need, therefore, is to construe Clause (c) of Sub-section (1) of Section 488 Cr. P. C liberally to fructify the object underlying the provision. In this connection it would be advantageous to quote here the observations of the Apex Court in Shri Bhagwan Dutt v. Smt. Kamla Devi (1975) 2 SCC 386:
'11.... This chapter in the words of Sir James Fitzstephen, provides'a mode of preventing vagrancy, or at least of preventing its consequences'. These provisions are intended to fulfill a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief they seek to ensure that the neglected wife and children are not left beggard and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus. Section 488 is not intended to provide for a full and final determination of the status and personal, rights of the parties. The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive......' (underlinning supplied)
In the aforesaid case the Apex Court was dealing with the claim for maintenance of a wife.
19. Learned counsel arguing for the petitioners submitted that under Muslim Personal Law daughters are legally entitled to be maintained by the father till they get married even where the marriage takes place much after their attaining puberty. They further submitted that application of personal law is not excluded by the provisions of Section 488 Cr. P. C. and, in fact, the law is settled that personal law can be read together with the provisions relating to maintenance contained in the Code. In support of this submission, the learned counsel, besides referring to the relevant passages from Summarised Sahi A1-Bukhari, (a compilation of holy sayings of the holy Prophet) translated by Dr. Muhammad Muhsin Khan, Islamic University, (Kingdon of Saudi Arabia); the Islamic Law on Maintenance of Women, Children, Parents and other relatives by Dr. M. Afzal Wani (1995 Edn); Tahir Mahmood's Book, the Muslim Law of India (Third Edition 2002); The Hedaya, a commentary on the Islamic laws translated by Charles Hamilton (Reprint Edition 1994), cited and relied upon Yanunabai v. Anantrao, AIR 1988 SC 644; Jagdesh Jugtawat v. Manju Lata, (2002) 5, SCC 422; Fazi v. All Mohd 1975 Cri L.J. 1228 :1974(V) J&K; LR730 and Noor Saba Khatoon v. Mohd. Quasim, AIR 1997 SC 3280. The learned counsel canvassing for the Reference argued that the obligation of a Muslim father, having sufficient means, to maintain his female children till they get married is absolute, notwithstanding the fact that they might be living with the divorced wife.
They invited the attention of the Court to Clause (d) of Sub-section (1) of Section 4 of the Sri Pratap Jammu and Kashmir Laws (Consolidation) Act, 1977 (1920 AD) (hereinafter referred to as 'the Consolidation Act)', and submitted that by virtue thereof, the Personal Law has been made applicable in the State to be administered by the Civil and Criminal Courts in Jammu and Kashmir State in relation to matters specified therein, which includes maintenance. On the other hand, learned counsel for the respondent argued that the judgment in Noor Saba Khatoon v. Mohd. Quasim (supra) has been passed by the Apex Court in context of the provisions of Muslim Women (Protection of Rights on Divorce) Act of 1986 which is not applicable to the State of Jammu and Kashmir, His second submission is that Clause (d) of Sub-section (1) of Section 4 of the Consolidation Act does not include maintenance and, even if personal law is to be read together with the provisions of Section 488 Cr. P. C. the Court cannot import the term 'maintenance' in the relevant provision of the Consolidation Act which is not there.
20. On the question whether personal law can be read with the provisions of the Code of Criminal Procedure providing for maintenance, their lordships of the Supreme Court in Yamunabai v. Anantrao (supra) held as under:
'The attempt to exclude altogether the personal law applicable to the parties from consideration is improper. Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under Sub-section (1)(a) has to establish the necessary condition namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by reference to the appropriate law governing the parties.'
In Noor Saba Khatoon v. Mohd. Quasim (supra) the Supreme Court was dealing with a similar question. Their lordships held as under :
'... the obligation of a Muslim father to maintain the minor children is governed by Section 125 Cr. P.C. and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children this obligation extends till their marriage. Apart from the statutory provisions referred to above, even under the Muslim Personal Law, the right of minor children to receive maintenance from their father, till they are able to maintain themselves is absolute.'
21. In the aforesaid judgment, their lordships of the Supreme Court also quoted a passage from the Book 'Statute Law relating to Muslims in India (1995 Edn.) in relation to Section 125 Cr. P. C. written by Professor Tahir Mahamood. The relevant portion of the said passage, as quoted in the judgment is reproduced hereunder:
'By Muslim Law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled of maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thayiba (divorcee/widow). Sons are entitled to it till they attain bulugh if they are normal, and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet had said:
'Whoever has daughters and spends all that he has on their upbringing well, on the Day of judgment, be as close to me as two fingers of a hand.'
If a father is poverty stricken and cannot therefore provide maintenance to his children while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves.'
22. The Apex Court supplied emphasis to the aforesaid passages from Tahir Mahamood's book. It was further held as under:
'10. Thus, both under the personal law and the statutory law (Section 125 Cr. P. C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.
11. Thus, our answer to the, question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125 Cr. P. C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they got married, and this right is not restricted, affected or controlled by divorcee wife's right to claim maintenance ... In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125 Cr. P. C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married,'
23. In Jagdesh Jugtawat v. Manju Lata (supra) again a similar question, arising out of Section 125 of Cr. P. C. and Section 20(3) of Hindu Adoptions and Maintenance Act, came up for consideration before the Supreme Court. Relying on the principles laid down in Noor Saba Khatoon v. Mohd. Quasim (supa) the Apex Court observed as under:
'Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act...'
In this view of the matter, not only the Muslim Personal Law, but also the provisions of Hindu Adoptions and Maintenance Act can be read together with the provisions of Section 488 Cr. P. C.
24. Learned counsel for the respondent argued that Clause (d) of subsection (1) of Section 4 of the Consolidation Act of 1977 (1920 AD) does not make a mention of maintenance, therefore, it has to be taken that Personal Law in relation to maintenance has not been made applicable in the State of Jammu and Kashmir. Before referring to the relevant provision of the Consolidation Act, 1920 AD, it would be appropriate to mention here that in Fazi v. Ali Mohd. 1975 Cri L. J.1228:1974 (V) J&K; LR 730 a question arose before the Division Bench of this Court relating to maintenance of a divorced wife during the period of 'iddat'. It was argued before the Court that the award of maintenance during Iddat is only a personal right of a wife available to her under the Mohmmedan Law, and she can get this right only in a civil court. It was further argued that for the purpose of Section 488 Cr. P. C. the wife, after being divorced, would not be a wife in the eye of law and, therefore, Section 488 would have no application. Adverting to this argument, the Division Bench of this Court held as under :
'We are, however, unable to agree with this contention. Section 488 of the Code of Criminal Procedure is not subordinate to any personal law but a general law on the subject which has to be regulated by personal law and the circumstances. If the Mohammedan Law confers a right of maintenance during the period of Iddat then such a legal right can be enforced under Section 488 of the Code of Criminal Procedure during that period. Section 4(1)(d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 runs as under:
'(d) in questions regarding succession, inheritance, special property of females, betrothals, marriage divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, casts or any religious usage or institution, the rule of decision is and shall be -
the Mohammedan Law in cases where the parties are Mohammedan......' By force of Sri Pratap Jammu and Kashmir Laws Consolidation Act (1977) since the wife is entitled to maintenance during the period of Iddat after divorce has been made, the criminal court acting under Section 488 of the Code of Cr. Pr. becomes empowered to grant this maintenance during this limited period.'
25. It is thus seen that if the personal law confers the right to maintenance then such a legal right can be enforced under Section 488 of the Code of Criminal Procedure. Therefore, the question is no more re integra. In the case, Fazi v. Ali Mohd (supra), the Division Bench of this Court has noticed Clause (d) of Sub-section (1) of Section 4 of the Consolidation Act of 1920 AD and applied personal law by force of the said provision of Consolidation Act. This should answer the argument of learned counsel for the respondent that term maintenance is not mentioned in Clause (d) of Sub-section (1) of Section 4 of the Consolidation Act 1920 AD. Even so, we may observe that the term 'religious institution', occurring in the aforesaid provision of the Consolidation Act 1920 does not mean a temple, mosque or shrine. It means an established law, custom or practice. Obviously, established law has reference to all established personal laws, which include the law relating to entitlement to or grant of maintenance. It is not the case of the respondent that Muslim Personal Law does not govern the subject of maintenance. In fact, the Books on the Muslim Law cited by the learned counsel for the petitioners and noticed by us in this judgment in clear terms describe the absolute nature of the duty of a father to maintain major unmarried daughters till they are married. That apart, the term 'family relations' occurring in Clause (d) of Sub-section (1) of Section 4 of the Consolidation Act embraces the liability to maintain. The argument of learned counsel for the respondent in this behalf is, accordingly, answered and over-ruled.
26. We have carefully gone through the judgment of the learned Single Judge of this Court passed in Mala Sidiq v. Dilshada Banoo (supra). In that case, the learned Single Judge after noticing the judgments of the Supreme Court in Noor Saba Khatoon v. Mohd Quasim and Jagdesh Jugtawat v. Manju Lata (supra), observed that the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 do not extend to the State of Jammu and Kashmir, therefore, the same could not be read together with Section 488 of the Code. Similarly, the learned Single Judge observed that in case of such Hindu girl also the position in respect of her right of maintenance shall remain the same and it would not be permissible to read the provisions of Hindu Adoption and Maintenance Act together with Section 488 as was done by the Supreme Court in Jagdesh Jugtawat v. Manju Lata (supra), for the reason that in that case the basic order in issue had been passed by a Family Court. The learned Single Judge, after noticing Section 7 of the Family Courts Act observed as under:
'In view of the provisions of Section 7, the Family Court possessed jurisdiction to grant maintenance under Civil Law as well as under Section 125 Cr. P.C. corresponding to Section 488 of J&K; Cr. P.C. and, therefore, it appears that their lordships in Jagtawat's case (supra) held that Section 20(3) of Hindu Adoption and Maintenance Act, could be applied for granting maintenance under Section 125 Cr. P.C. But in J&K; No jurisdiction akin to Section 7 of Central Family Court's Act exists. A Judicial Magistrate in J&K; can exercise jurisdiction for granting maintenance only under the provisions contained in Section 488 Cr. P.C. under which right of children for maintenance is restricted upto the attainment of majority or ability to maintain themselves, whichever is earlier.'
27. Family Courts are a creation of Family Courts Act. Sub-section (1) of Section 7 of the Family Courts Act, says that a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation appended thereto. Clause (f) under the Explanation referred to by the learned Single Judge, which reads 'suits or proceedings for maintenance', does not refer to the 'Order for maintenance of wife, children and parents' as contained in Section 125 of the Central Procedure Code. Clause (f) under the Explanation in Section 7 of the Family Courts Act has reference to such proceedings as may be initiated for grant of maintenance by any person by resort to civil law, including Section 20(3) of the Hindu Adoptions and Maintenance Act or Section 3(1)(b) of the Muslim women (Protection of Rights on Divorce) Act, 1986, Clause (f) does not construe or contemplate that the Family Court should read Section 125 of the Code together with any proceeding brought before the Court in its civil jurisdiction, nor has the Supreme Court interpreted or construed it to mean so. In fact, the case before the Supreme Court in Noor Saba Kkatoon v. Mohd Quasim (supra) had arisen out of proceedings under Section 125 of the Central Code of Criminal Procedure. So was the case in Jagdish Jugtawat v. Manju Lata (supra). In both cases, the provisions contained in the law reflecting the liability of a father under personal law to maintain his major unmarried daughters, were read together with the provisions of Section 125 of the Code. It is one thing to read a provision of personal law together with Section 125 of the Code in proceedings initiated under the latter provision and another thing to read Section 125 Cr. P.C. in proceedings brought before a court under either of the aforesaid two Acts. These are two distinct and incompatible situations. Section 125 of the Central Procedure Code, as is the base with Section 488 of Cr. P.C. in J&K;, is an independent provision, not subordinate to any other law. This is further clarified by Sub-section (2) of Section 7 of the Family Courts Act, which reads as under:
'(2) Subject to the other provisions of this Act, a Family Court shall have and exercise.-(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973;'
28. A plain reading of Clause (a) of Sub-section (2) of Section 7 of the Family Courts Act reveals that a Family Court, though a Civil Court, is conferred with Magisterial powers exercisable under Section 125 of the Central Code of Criminal Procedure. In other words, while dealing with proceedings under Section 125 Cr. P.C., a Family Court under the Family Courts Act outside State of Jammu and Kashmir does not act as a Civil Court, but acts as a Magistrate of 1st Class. The Family Court may have some other civil jurisdiction conferred on it, but that fact by itself does not create any distinction between such a Court and a Judicial Magistrate of 1st Class exercising jurisdiction under Section 488 of the Code in the State of Jammu and Kashmir. In the State of Jammu and Kashmir also almost every Judicial Magistrate has a dual function: one under the ordinary Civil Law and the other under Criminal Procedure Code. Therefore, whether the order of maintenance is passed by a Family Court acting as a Magistrate of the 1st Class in exercise of its jurisdiction under Section 125 of the Central Code of Criminal Procedure or by a Judicial Magistrate, 1st Class exercising powers under Section 488 of the J&K; Code of Criminal Procedure, the fact remains that both exercise the Magisterial powers and on that count no distinction can be made in the application of law settled by the Apex Court.
29. As to the application of Muslim Women (Protection of Rights on Divorce) Act, 1986 to the State of Jammu and Kashmir, the question is not whether the provisions of the aforesaid Act extend to the State of Jammu and Kashmir or not. The real question is whether the Personal Laws can be applied by the Criminal Courts in proceedings initiated under Section 488 Cr. P.C. in the State of Jammu and Kashmir. We have already quoted the judgment of the Division Bench of this Court in Fazi v. AH Mohd (supra) in which a portion of Clause (d) of Sub-section (1) of Section 4 of Consolidation Act has been quoted. We deem it appropriate to quote hereunder the full text of the aforesaid provision of law insofar as it is relevant:
'4. Laws in force. -- (1) The Laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu and Kashmir are and shall be as follows :-
(a)..
(b) ...
(c) ...
(d) in question regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution, the rules of decision is and shall be.-
the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity and good conscience and has not been, by this or any other enactment, altered or abolished and has not been declared to be void by any competent authority.'
30. The aforesaid provision makes it unambiguously clear that not only Muslim Personal Law, but Hindu Law as well, is to be administered by the Civil and Criminal Courts. Therefore, following the ratio of the judgments of the Supreme Court in Noor Saba Khatoon v. Mohd Quasim and Jagdesh Jugtawat Y Manju Lata (supra) as also the judgment of this Court in Fazi v. Ali Mohd (supra), Personal Laws can be and have to be read together with the provision of Section 488 of the Code of Criminal Procedure in Jammu and Kashmir State. In that view of the matter, we are of the view that the learned Single Judge in Mala Sidiq v. Dilshada Banoo (supra), though noticed the right position of law, but did not apply the same correctly, apparently, on account of inadequate assistance rendered to the Court by the concerned counsel, inasmuch the Consolidation Act of 1920 was not brought to the notice of the Court.
31. In view of all what has been discussed and observed above, the judgment in Mala Sidiq v. Dilshada Banoo does not lay down the correct law and is, therefore, hereby overruled. We hold that major unmarried daughters are entitled to claim maintenance from their father in summary proceedings under Section 488 of the Code of Criminal Procedure. 32. On merits of the present case, learned counsel for the respondent submitted that while deciding the application for enhancement made by the petitioners under Section 489 Cr. P.C. the learned Chief Judicial Magistrate took note of the relevant facts and material brought on record and, on assessment thereof, ordered enhancement of maintenance from Rs. 500 to Rs. 1500 in respect of the two daughters, namely, Lubna Mehraj and Hena Mehraj, and from Rs. 500/ to Rs. 1000 in respect of son, Uvais Mehraj. According to the learned counsel, there was no fresh material available, or brought on record, before the learned Additional Sessions Judge warranting further enhancement. Therefore, according to the learned counsel, the proposal for enhancement made by the learned Sessions Judge is unwarranted, unreasonable and excessive. He also invited the attention of this Court to the facts which are presently attendant to each of the petitioner. The learned counsel also argued that maintenance should be construed to mean the minimum bare needs which would not include luxuries of life or higher education.
33. Maintenance includes expenses incurred on education of children especially when, from the circumstances and status of the family, a reasonable course of education is indispensable in order to earn living. Otherwise also, when propensity of a child for education is gathered from evidence, that would constitute a reasonable circumstance to be taken note of while awarding maintenance. We have already observed in this judgment that maintenance cannot be limited to food and clothing alone. In the present case, the respondent is an Engineer by profession, meaning thereby that education in the family is indispensable.
34. One of the daughters of the respondent, namely, Lubna Mehraj is admittedly undergoing B.D.S. The other daughter, namely, Heena Mehraj was undergoing three years' diploma in Engineering and Electronics. Respondent has filed an affidavit before this Court stating therein that his daughter Hena Mehraj completed the aforesaid three years' course in March, 2002. He has, in fact, produced photocopy of a certificate dated 30.8.2003 issued by the Registrar, SSM Polytechnic Divar Parihaspora, Kashmir, wherein it is stated that Heena Kanth d/o Mr. Mehraj-ud-Din Kanth has completed her three years diploma in Electronics and Communication in the year May - June 2002 and that she was a student of the institute under Roll No. 1143 upto March, 2002. This affidavit was permitted to be taken on record. On the other hand, the petitioners also produced photocopy of a certificate dated 2nd August, 2003 purporting to be from Manager Training National Institute of Computer Technology. In this Certificate it is stated that the said petitioner is undergoing DOEACC 'O' Level Computer Course through the Institution. However, we are not taking either of these certificates into consideration. Any new circumstance that has come into existence after order dated 4th September, 2000 was passed, can be brought to the notice of the learned Magistrate in appropriate proceedings for variation of the awarded amount. The son, namely, Uvais Mehraj, i.e., petitioner No. 3, is a School going child.
During the course of cross-examination, the respondent before the trial court admitted that the maintenance that was being paid to them, i.e., Rs. 500 each, was insufficient. He also admitted that he did not pay any admission fee to petitioners 1 and 2 at the time they were admitted to professional Colleges. The learned Magistrate, after hearing counsel and on consideration of evidence, oral and documentary, brought on record, enhanced the maintenance in respect of each of the petitioners. It may be mentioned here that the gross salary per month of the respondent is shown to be Rs. 15,982. Out of this amount, an amount of Rs. 8000 is being deducted from him on account of withdrawals made by him from his G. P. Fund. Copy of the sanction order dated 13th September, 2001 is on record of the file. It depicts that the respondent has withdrawn an aggregate amount of Rs. 3,78,600 from his G. P. Fund account which has to be recovered from his pay in 48 monthly installments of Rs. 8000 each commencing from September, 2001. The amount so withdrawn by the respondent also includes an amount of Rs. 66,000 which the respondent had to pay towards arrears of maintenance earlier ordered by the learned Magistrate. In any case, this liability of the respondent would last only till September, 2005. Rs. 625/ - are deducted from his pay towards Income-tax each month. Besides, he is contributing an amount of Rs. 2000 towards his G. P. Fund account each month, leaving a net salary of Rs. 5570. It has also come on record that out of this net salary of Rs. 5570/ he is paying the maintenance allowance towards his children, i.e., the petitioners.
A government servant under the relevant rules is under a mandate to contribute towards his G. P. Fund account a minimum amount equivalent to 6% of his pay. Given the salary that the respondent is receiving, he is required to contribute around Rs. 900 towards his G. P. Fund. That means he is optionally contributing an amount of around Rs. 1,100 towards his G. P. Fund. The leaned Chief Judicial Magistrate has taken note of these facts and observed that respondent could approach the Drawing and Disbursing Officer for reducing the rate of Rs. 8000 monthly installments being deducted from him towards recoveries of the G. P. Fund advance withdrawn by him. The learned Sessions Judge in his order of Reference has observed that 'the respondent admittedly is an engineer so in my opinion he has sufficient means that is he can raise the loan or he can obtain the G. P. Fund advances, the way he has obtained it earlier for the recovery of which Rs. 8000 are deducted from his salary. Further more instead of subscribing Rs. 2000 he can reduce subscription to the permissible limit'. No special circumstance other than what was considered by the learned Magistrate while passing the order dated 4th September, 2000 has crept in to justify any further enhancement ordered by the learned Magistrate. Therefore, we feel that the submission of learned counsel for the respondent is not wholly misplaced, more so when the learned Sessions Judge as well as the learned Magistrate have noted the fact that the respondent is presently drawing only Rupees five thousand and odd as his salary and rest of the amount, is going towards the deductions and contributions. The learned Magistrate, while ordering enhancement, has already observed that the respondent could approach the concerned Drawing and Disbursing Officer for reduction of the rate of deductions being made from his pay towards liquidation of the G. P. Fund advance taken by him. We feel that the learned Magistrate has taken reasonable care of every aspect of the matter. Therefore, the proposal made by the learned Additional Sessions Judge is excessive.
35. The Reference is, accordingly, answered. However, we leave the petitioners free to approach the learned Chief Judicial Magistrate, as and when they feel any change in the circumstances, necessitating further enhancement in the maintenance allowance. The trial court records be returned to the concerned courts forthwith.