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Jammu & Kashmir High Court - Srinagar Bench

Wahid Ahmad Khan vs Rabiya Jan on 4 October, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

                    HIGH COURT OF JAMMU AND KASHMIR
                              AT SRINAGAR

561-A No. 42/2017
IA No. 01/2017
                                             Date of Order: 4th of October, 2018.

                               Wahid Ahmad Khan
                                       Vs.
                                   Rabiya Jan

Coram:
               Hon'ble Mr Justice M. K. Hanjura, Judge.

Appearance:

      For the Petitioner(s):    Mr Shuja-ul-Haq Tantray, Advocate.
      For the Respondent(s): Mr L. A. Latief, Advocate.

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01. In this petition, filed under Section 561-A of the Code of Criminal Procedure (Cr. P.C.), the petitioner beseechs that the order dated 15th of February, 2017, passed by the learned Judicial Magistrate, 1 st Class (Munsiff), Charari Sharief, in an application filed by the petitioner on behalf of his brother for setting aside the order dated 15th of April, 2015, passed in ex parte in an application under Section 488 CR.P.C, be quashed.

02. Heard and considered.

03. What is brought to the fruition from the perusal of the order impugned, in this petition, is that Wahid Ahmad Khan, the petitioner herein being the brother of Ishtiyaq Ahmad Khan, i.e. the husband of Rabiya Jan (respondent herein this petition), presented an application before the learned trial Court for setting aside the ex parte order, whereby Instiyaq Ahmad Khan, the husband of the respondent, was directed to pay maintenance in her favour. The husband failed to pay the maintenance, as a sequel to which, the respondent filed an execution petition. During the pendency of the execution petition, the petitioner, i.e. the brother of the husband of the respondent, filed an application before the Court with the request that the order dated 15th of April, 2015, passed in ex parte, in an application under Section 488 of the Code of Criminal Procedure (Cr. P.C.), be kept in abeyance pending disposal of his application seeking setting aside of the order of ex-parte. The learned Magistrate, after taking an overall view of the matter, dismissed both the applications, viz. the application seeking setting aside of the ex parte order and the application for staying the operation of the order passed in ex parte directing the payment of maintenance. In addition, the learned Magistrate imposed compensatory costs to the tune of Rs. 30,000/- on the petitioner before this Court, with a further direction that these shall be paid to the respondent lady. The relevant excerpts of the said order as are germane to the decision of this petition are detailed below, verbatim et literatim:

"Section 488 Crpc contains social welfare legislation and the primary and dominant object is to ensure social justice and to prevent destitution and vagrancy by enforcing the statutory and moral duty of those who can support in favour of those who are unable to maintain themselves. Chapter XXXVI containing sections 488-490 of the Code of Criminal Procedure is a self-contained code which provides for all probable exigencies which may arise for the grant of maintenance or the execution of the maintenance orders. The provisions expressly deal with the consequences of non-appearance of parties and the remedies thereto. The provisions relevant herein are contained under section 488 clause (6) and Clause (7) of the code and are reproduced hereinunder:

"(6) All evidence under this chapter shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with, in the presence of his pleader.

Provided that if the magistrate is satisfied that he is willfully avoiding service or willfully neglects to attend the Court the magistrate may proceed to hear and determine the case ex-parte. Any order so made may be set aside for good cause shown on an application made within three months from the date thereof.

(7) The court in dealing with applications under this section shall have power to make such order as to costs as may be just."

The plain reading of these provisions suggest and leads to the following prepositions:

(1) That all the evidence has to be recorded in presence of the person against whom the maintenance is claimed unless the personal attendance of the said person is dispensed with by the court and in that case the evidence can only be recorded in presence of his pleader;

(2) That a claim for maintenance can be heard and determined in ex-parte where the person against whom the maintenance is claimed, to the satisfaction of the court willfully avoids service or willfully neglects to attend the Court.

(3) That any order made in ex-parte can be set aside by the court for good cause shown on an application.

That the application has to be made within three months from the date of order.

These provisions, therefore, signify that ordinarily all the proceedings envisaged under section 488 Crpc are to be taken in presence of the person against whom the order for payment of maintenance is proposed to be made and it is only on some special grounds that his personal attendance can be dispensed with through the medium of the pleader representing the person. On analogy the same rule applies to the proceedings taken and initiated for seeking the setting aside of any ex- parte order made under the provisions of section 488 Crpc. In fact the proceedings taken or initiated by a person to set aside an ex-parte order passed against him stand him on a higher footing and invariable call for the personal appearance of the petitioner during the proceedings because here a person submits to the court that an ex-parte order has been passed against him at his back and while passing the order the person has not been heard and now the person is ready to participate in eth proceedings, the clock be turned back, the ex-parte order be set aside and the matter be heard and determined afresh on merits to ensure substantial justice. In an application filed with the prayer to set aside an ex-parte order there is 561-A No. 42/2017 Page 3 of 5 limited scope to even dispense with the personal attendance of the petitioner unless there are compelling circumstances which are beyond the control of the petitioner like severe medical illness and like circumstances. In all cases the exemption from personal appearance can only be made by an express order from the court and cannot be implied under any circumstances."

04. The order of the learned trial Court is pellucid in content and lucid in details. It cannot be niggled or grumbled. The relevant provisions of sub-section 6 and sub-section 7 of Section 488 of the Code of Criminal Procedure (Cr. P.C.), which deal with the subject, have to be interpreted in the way and in the manner in which these have been conceptualized. Sub-section 6 crystalizes that all evidence under this chapter shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with, in the presence of his pleader. The proviso added to it provides that if a Magistrate is satisfied that he is willfully avoiding service or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof. Sub-section 7 provides that the Court, in dealing with applications under this Section, shall have the power to make such an order as to costs as may be just. These provisions do convey and support the view taken by the learned Magistrate which cannot be diluted or tinkered with by substituting any other reasoning.

05. In view of the preceding analysis, the petition of the petitioner is devoid of any merit. The order impugned having been based on the law, the logic and the reason, cannot be altered or modified or set aside, as a corollary to which, the petition of the petitioner, alongwith all connected MP(s), is dismissed. Interim directions, if any, in force, as on date, shall stand vacated.

06. Registry to send a copy of this order to the learned trial Court for information.

(M. K. Hanjura) Judge SRINAGAR October 4th, 2018 "TAHIR"