[S.126(1)(b) CrPC] Liberal Interpretation Of Term "Resides" Is Essential To Realise Its Legislative Objective: J&K High Court

A bench comprising Justice Mohammad Yousuf Wani has observed,

“The Provisions of Sections 125 and 126 of the Code providing for maintenance of wives, children and parents and the procedure for filing maintenance petitions with special reference to the place of maintaining the proceedings are in the form of social legislation aimed to benefit the destitute wives, neglected children and abandoned parents. It is their convenience which has to be kept in view while interpreting the scope of the Section 126”.

Background:

The case involved Masarat Jan, who filed a petition under Section 125 of the CrPC seeking maintenance from her husband Fayaz Ahmad Parray. The petition was filed at the Family Court in Srinagar, where Masarat resided with her parents since the marital dispute began. However, the trial court rejected the petition, citing lack of jurisdiction. Masarat challenged this order in the High Court.

Masarat's lawyers argued that Section 126 of the CrPC allows a wife to file for maintenance in any district where she or her husband resides, or where they last resided together. They emphasized that Masarat's current residence at her parental home was valid for filing the petition.

On the other hand, Parray's counsel, Mr. Salman Jan, argued that the petition should have been filed in Ganderbal, where both parties originally resided.

Court's Observations:

Justice Wani, while examining the rival contentions, referred to Section 7 of the Family Courts Act, 1984, and Section 126 of the CrPC. He highlighted that these provisions aim to benefit those in need of maintenance and prioritize their convenience during proceedings.

Underscoring the importance of a liberal and logical interpretation of term "resides" used in the provision the bench explained, 

“The Provisions of Section 126 which are in parametria with the provisions of Section 488 Clause (8) of the erstwhile repealed State Code of Criminal Procedure Svt. 1989, came to be enacted by way of amendment to alleviate hardships and sufferings of destitute wives, neglected children and abandoned parents who were forced to maintain the proceedings for much needed relief of maintenance at a place of residence of the respondent in his capacity as the husband, father or the son as the case may be”. 

The Court further noted the common practice of wives seeking shelter at their parental home during marital discord and distinguished this situation from ordinary civil or criminal cases where residence might be manipulated for jurisdictional advantage.

Relying on the principle of liberal interpretation to achieve the objectives of the legislation, Justice Wani allowed Masarat's appeal. He declared the trial court's order rejecting the petition to be incorrect. The Court further directed Masarat to present a fresh petition before the Family Court in Srinagar or retrieve the existing one, if submitted earlier.

Case Title: Masarat Jan Vs Fayaz Ahmad Parray

Citation: 2024 LiveLaw (JKL) 127

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