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2012 DIGILAW 5 (JK)

Anayat Ali v. Zaitoon Bibi and ors

2012-01-30

J.P.SINGH

body2012
Allowing Zaitoon Bibi and her two minor sons Mukhtar Ali and Karamat Ali s Application under Section 488 of the Code of Criminal Procedure, learned Judicial Magistrate First Class (Special Railway Magistrate), Jammu directed Anayat Ali-petitioner, a Forest Guard, to pay Rs.1,700/- to Zaitoon Bibi, his wife, and Rs.1,500/- to Mukhtar Ali and Karamat Ali, each, his sons, till they attained majority, as maintenance, vide order dated 04.12.2009. Learned Magistrate passed the maintenance order recording that Zaitoon Bibi and her two minor school going sons were living separately from Anayat Ali who was putting up with his second wife. It further came to the conclusion that Anayat Ali s plea of having divorced Zaitoon Bibi, taken at the time of final hearing of the Maintenance Application, had not been proved and was even otherwise untenable as he had not honoured his offer, made during the pendency of the proceedings, to maintain Zaitoon Bibi. During the course of the proceedings before the learned Magistrate, the petitioner did not dispute his liability to pay maintenance to his minor sons. Appearing for the petitioner his learned counsel, Mr. C.S.Azad, submitted that the Magistrate s order was unsustainable as he had not allowed opportunity to the petitioner to prove his case set up in answer to Zaitoon Bibi s Claim to maintenance. According to him, one of the minors namely Karamat Ali had attained majority and was therefore disentitled to maintenance as the provisions of Section 488 of the Code of Criminal Procedure may not warrant maintenance for major son/daughter. Per contra, respondents learned counsel submitted that petitioner was allowed numerous opportunities to prove his defense and it was only on his continued failure to produce evidence that the case was heard on the basis of respondents evidence. He further submitted that the petitioner having already approached the learned Magistrate to seek consideration of his plea of one of his sons disentitlement to maintenance having attained majority during the currency of the proceedings, the same plea could not be raised before the Revisional Court so long as the plea was in seizin of the learned Magistrate. I have considered the submissions of learned counsel for the parties and gone through the order passed by the learned Magistrate. I have considered the submissions of learned counsel for the parties and gone through the order passed by the learned Magistrate. Learned Magistrate has reproduced in extenso Zaitoon Bibi and her witness Jamal Din s statements in its order besides indicating that despite several opportunities having been allowed to the petitioner he had opted not to produce any evidence in rebuttal and his evidence was, therefore, closed vide order dated 16.12.2008. He has dealt in detail the submissions projected by the petitioner to contest the respondents Claim to maintenance and thereafter recorded his findings thereon. The petitioner s plea that he was not allowed opportunity to lead evidence to substantiate his defense of having divorced the respondent is found without merit, in that, nothing has been brought on records by the petitioner to indicate that he was not allowed opportunity to produce evidence, which according to the learned Magistrate was closed only when, despite opportunities allowed to him, he failed to produce any evidence . This apart, learned Magistrate has given cogent reasons in sanctioning maintenance in favour of Zaitoon Bibi, Mukhtar Ali and Karamat Ali. The findings recorded by the learned Magistrate are well merited which do not suffer from any irregularity or illegality warranting interference in revision. In so far as the petitioner s plea of disentitlement of one of his sons to maintenance was concerned, learned Magistrate s order takes care of that by providing that maintenance would be payable till the minors attained majority. Nothing more, therefore, needs to be said beyond that additionally because the petitioner is stated to have already moved the learned Magistrate to have requisite finding on the question as to whether or not one of his sons had attained majority during the pendency of the proceedings. For all what has been said above, petitioners Revision is found without merit, hence dismissed.