CRM(M) No.766/2023 1 | P a g e S. No. 70 Regular List ,,,HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No.766/2023 SHAKEELA AKHTER …..Petitioner(s) Through: Ms. Sami Shah and Ms.Sanoober, Advocates. V/s MOHAMMAD SHAFI MALIK … ..Respondent(s) Through : Mr.Owais Shafi, Advocate CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 28.07.2025 1. The petitioner has challenged order dated 04.04.2023, passed by learned Judicial Magistrate 1st Class, Chadoora (hereafter referred to as <the trial Magistrate=), whereby her petition under Section 488 J&K Cr.P.C has been dismissed by the learned trial Magistrate. 2. I have heard learned counsel for the parties and perused the impugned order and the trial court record. 3. It appears that the petitioner claiming herself to be wife of the respondent, filed petition under Section 488 J&K Cr.P.C, CRM(M) No.766/2023 2 | P a g e seeking maintenance against him. In the petition, the petitioner has alleged that behavior of the respondent towards her has been cruel and that she has been given ruthless beating by him several times. She has further contended that the inhumane behavior of the respondent compelled her to take shelter in her parental home and the respondent totally neglected her, as a result of which, she is unable to maintain herself. 4. It seems that the respondent has contested the petition by filing objections thereto. In the objections the respondent has contended that behavior of the petitioner has been immoral, unethical and criminal and that she did not change her behavior, which prompted him to divorce her in the month of March, 2017. It has been submitted that the petitioner was arrested at Jammu Bus Stand in connection with an FIR for offences under Section 08/15/20 of NDPS Act and charas as well as poppy straw was recovered from her possession. It has been further submitted that the respondent has already filed a civil suit against the petitioner and an order has been passed by the Civil Court restraining the petitioner from making any kind of interference into the personal life of the respondent and his two minor children. It seems that the respondent further contended before the learned trial Magistrate that the petitioner while seeking bail in the aforesaid criminal case, pleaded before the CRM(M) No.766/2023 3 | P a g e Court that she is a widow and has to lookafter her two minor children. 5. The trial Court record shows that the parties have examined the witnesses in support of their respective cases and after completion of trial the case was set down for final hearing. 6. Vide the impugned order the learned trial Magistrate has dismissed the application of the petitioner on the ground that the petitioner has made a false statement before the Court of 1st Additional Sessions Judge, Jammu while applying for bail, and as such, she was disentitled to get any relief against the respondent owing to her conduct. 7. The petitioner has challenged the impugned order on the ground that the same has been passed contrary to the provisions of law. It has been further submitted that the petitioner was not granted any opportunity to meet the contention that she has made a false statement before the Court of learned 1st Additional Sessions Judge, Jammu. It has been also contended that even if the petitioner had made any such statement before the Court of 1st Additional Sessions Judge, Jammu, the application of the petitioner could not have been dismissed on this ground alone. 8. Section 488 of J&K Cr.P.C, which provides for maintenance of wives, children and parents, lays down that if any person having sufficient means neglects or refuses to CRM(M) No.766/2023 4 | P a g e maintain his wife who is unable to maintain herself, the Magistrate upon proof of such neglect or refusal, has jurisdiction to order such person to make a monthly maintenance of his wife at such monthly rate as such Magistrate thinks fit. 9. Thus, for seeking the relief of maintenance under Section 488 of J&K Cr.P.C, a wife has to show that her husband is neglecting her or has refused to maintain her and that she is unable to maintain herself. Once these facts are proved by the wife, the Magistrate is bound to pass an order of maintenance in her favour as against her husband. 10. Sub Section (4) of Section 488 of J&K Cr.P.C provides that a wife would not be entitled to receive the allowance from her husband if she is living in adultery or without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. Thus, wife is disentitled to claim maintenance from her husband if either she lives in adultery or she refuses to live with her husband without a sufficient reason. 11. The reason assigned by the learned trial Magistrate for dismissing the application of the petitioner is that she had made a false statement in bail proceedings in a criminal case registered against her. This conduct of the petitioner even if taken to be correct, does not disentitle her to seek maintenance from the respondent/husband. It is only after it is shown that she has been CRM(M) No.766/2023 5 | P a g e living in adultery or that she has without sufficient reason refused to live with her husband or that she is able to maintain herself, that her application for grant of maintenance can be declined. A Magistrate can also refuse to award maintenance in favour of a lady if she fails to establish that she is wife of the person against whom she is claiming maintenance. However her application cannot be dismissed on a ground other than those provided in Section 488 of J&K Cr.P.C. Thus merely because the petitioner had made a false statement before the Court in some other proceedings, would not ipso facto disentitle her to claim maintenance from the respondent. 12. Apart from the above, the trial Magistrate before dismissing the application of the petitioner has not afforded opportunity to the petitioner to explain as to in what circumstances she had pleaded before the court of 1st Additional Sessions Judge, Jammu that her husband had expired. Without confronting the petitioner with the material containing the aforesaid pleading of the petitioner and seeking an explanation with regard to the same, the learned trial Magistrate could not have assumed that she had made a false statement. 13. A perusal of the trial Court record would reveal that although evidence was led by the parties before the said Court but learned trial court without referring to the said evidence and CRM(M) No.766/2023 6 | P a g e without appreciating the same, has found a short cut method to dismiss the petition on a ground which was not available in law for passing such order. The impugned order passed by the learned trial Magistrate is, therefore, not sustainable in law. 14. For the foregoing reasons, the petition is allowed. The impugned order passed by the learned trial Magistrate is set aside and the case is remanded to the learned Magistrate with a direction to decide the petition filed by the petitioner under Section 488 of J&K Cr.P.C, on its merits on the basis of evidence led by the parties, after hearing them. (SANJAY DHAR) JUDGE SRINAGAR 28.07.2025 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Sarveeda Nissar I attest to the accuracy and authenticity of this document every page at bottom left side 29.07.2025 18:12