Case Title: Shaukat Aziz Zargar Vs Nabil Shaukat & Ors.
Division Bench: Justice Sanjay Dhar
Citation: CRM (M) No. 238/2019
Recently, the Jammu and Kashmir and Ladakh High Court ruled that an adult son or daughter is not entitled to maintenance under Section 125 of the Central CrPC.
A bench of Justice Sanjay Dhar was considering a petition challenging the order passed by the Judicial Magistrate, which has dismissed the petitioner's application for quashing the maintenance order passed in favor of the respondents.
In this case, at the relevant time the respondent was living with his mother, who was living separately from her husband, the petitioner.
The petitioner retired from service and thereafter the defendants also attained the age of majority.
The petitioner filed another application before the trial magistrate seeking quashing of the maintenance paid in favor of the defendants. The said application was rejected by the trial magistrate.
Mr. Prince Hamza, counsel for the petitioner, submitted that, in terms of section 488 of J&K CrPC, only lawful or illegitimate minor children unable to maintain themselves are entitled to claim maintenance from their father. . It was submitted that the defendants having attained the age of majority are not entitled to claim maintenance from the petitioner from the date of their attainment of majority.
The issue of consideration before the bench was:
Whether an elder son is entitled to claim maintenance from his father under the provisions contained in section 488 of J&K CrPC. P.C.?
The High Court said that a court has no power to add or subtract from a law which is not there. If a court finds some ambiguity in a statute that becomes an obstacle to achieving the object and object of the statute, the court may give an objective interpretation of the statute, but where the language of the statute is clear and unambiguous, it is open to Not there. The Court reserves the right to add, replace or supply the words in the said statute and there shall be no need for interpretation.
The bench said that an eldest son or daughter cannot be maintained by a magistrate in exercise of his powers under section 125 of the Central Penal Code. P. C/488 of Jammu and Kashmir Cr. P.C. But in an appropriate case, a Family Court has jurisdiction to grant maintenance to a prominent Hindu daughter on the basis of a joint reading of the provisions contained in section 125 of CrPC. PC and Section 20(3) of the Hindu Adoption and Maintenance Act.
The High Court observed that “the defendants have, of course, attained the age of majority, as such, they are not entitled to claim maintenance from their fathers after attaining majority. The trial magistrate did not have jurisdiction to grant maintenance in favor of the defendants over the age of majority. Therefore, the order passed by the Trial Magistrate dismissing the petitioner's application for quashing the maintenance order, is without jurisdiction. ,
In view of the above, the bench allowed the petition and held that the respondent is entitled to maintenance from his father i.e. the petitioner only till he attains the age of majority.