1. This petition under Section 561- A Cr. P.C. has been filed with the prayer to quash the order dated 04.02.2015 passed by the learned Principal Sessions Judge, Baramulla, dismissing the revision petition that had been filed by the petitioner herein against the order dated 14.10.2013 passed by the learned Judicial Magistrate, 1st Class, Baramulla, on the petition for grant of maintenance filed under Section 488 Cr. P.C. before that court by the respondents herein, whereby the learned Magistrate granted an interim maintenance of Rs. 6000/- in favour of respondent no. 1 herein, being the wife of the petitioner, and Rs. 3000/- in favour of respondent no.2 herein, being the female child of the petitioner herein. The order granting aforesaid maintenance in favour of the two respondents-mother, daughter duo was made effective from the date of application, depicted on the top of the certified copy of the order as 31.12.2012.

2. The relationship between the petitioner and Respondent no. 1 of being spouses is rather admitted, and Respondent no. 2 is the most precious gift bestowed to them by the Creator in lieu of their inter se contract and unflinching assurances of togetherness once exchanged by them in between. Alas! They are estranged now, and the child, Respondent no. 2, as a natural course, is left at the cross roads of its life, holding the mothers finger, in a hope to derive an assured security and comfort from her. There cannot be anything horrendous, and often atrocious, for a child than separation of his or her parents, especially so when he or she is of very tender age. What a pity! People continuously shed their skin; their fat; they forget their good and bad memories, their losses and achievements in life; more often than not, they shun their favourite and fondling habits to please, and for the sake of, others, but what they tend not to forget and forgive are the castles of expectations imagined and built by them in dreams of married life, and when they see those dreamy expectations not being fulfilled, then they come out in the arena to play fencing. The most unfortunate fall out of this inability of spouses to descend from the dream world to live in real life is that the child suffers the most, inasmuch as his or her small world, sheet anchored on the foundations of the parental inter se togetherness, understanding, care and love, is blown off like the eruption of a volcano.

3. What pesters ones mind is that both -- the husband and the wife here -- are seemingly well educated, inasmuch as both are titled as Doctors, yet they have not been able to jointly choose or agree on a single shade of the pinkness of their lives. Well, they may be right in their respective rights to draw out their foils, epees and sabers against each other and enjoy the fencing, but till now they have failed to grasp the fact that every time they attempt at earning a point against each other, the hit is actually received by their child. Here I am reminded of the observations of their lordships constituting the Division Bench in the judgment in Lubna Mehraj v. Mehraj-ud-Din Kanth, 2004 (1) JKJ 418 [HC] about the impact the separation of a couple has on the mind of a child. The issue involved therein was altogether different, but the observations in context of the concern expressed above are very relevant. Paras 12, 13, 14 and 15 of the judgment are quoted hereunder:

"12. As observed above, Clause (c) of Sub-section (1) creates an exception to the condition of being minor as envisaged in Clause (b). However, whereas Clause (b) includes all minor children, whether married or not, Clause (c) is not that wide in its texture. It indicates the situations and circumstances in which, if neglect or refusal to maintain on the part of father is proved, a major unmarried daughter can claim such maintenance in the summary proceedings. Therefore, a major unmarried daughter is not totally excluded from the purview of Section 488. The phrase any physical or mental abnormality or injury, however, assumes importance.

13. The phrase, as is evident, has been used in disjunctive sense, i.e., these prescribed physical and mental states are separable and are to be read alternatively and severally or may be present even jointly. The phrase, however, cannot be read as physical or mental injury as being one circumstance and injury as being the alternate circumstance, as is suggested. The conjunction or occurring therein introduces alternatives, meaning one or the other. When segregated, the above phrase would mean physical abnormality or Physical injury; mental abnormality or mental injury. As regards physical abnormality, physical injury or mental abnormality, a child may have any or all of these defects by birth or may suffer the same after birth. It is understandable that any of such physical or mental defects would be conspicuous and obvious and one can also comprehend the import and meaning of these terms. But what does a mental injury connote is the question.

14. Mr. A.H. Naik, learned Advocate general, and M/s. Z.A. Shah, M.A. Qayoom and A. Haqani, learned counsel arguing for the proposition, as involved, herein, submitted that the term mental injury" is not an injury of a physical nature or a mental disorder of the nature as mental abnormality that would conspicuously appear in a child. According to them, it has something to do with the emotional aspect of the child and that a child may even be emotionally hurt by neglect of her father to an extent that would constitute malicious injury or even a child abuse. They further submitted that the word neglect has not to be construed in a limited sense of refusal to give food and clothing, but in a broader sense in context of the present day social aspirations and needs of children which include, affection, due care and concern, education etc. They further submitted when a child suffers neglect in context of all these basic needs, she is sure to be emotionally hit, reflecting adversely upon her mental faculty and that is mental injury. Mr. G.A. Lone, opposing this Reference, submitted that mental injury means nothing more than a mental infirmity by reason of which a female child may not be able to maintain herself. He further submitted that, in any case, when a major unmarried daughter claims maintenance, she has not only to prove mental injury but has even so also to establish before the court the reasons for her inability to maintain herself. In this regard he referred to the provision of Section 488 Cr. P.C. and various terms and phrases used therein.

15. The term mental injury" is not specifically or precisely defined in a conjunctive form either in the Code of Criminal Procedure or in the Oxford English dictionary or Websters English dictionary, which are often used as an aid by courts in understanding the construction of a statutory word, term, phrase or provision. However, the term is relatable to the behavioural changes caused due to emotional disturbances in a child. When parental actions are disruptive or disturbing in relationship, and hostility between parents goes out of control, children are the first to suffer, and suffer the worst. When such relationship ends in a divorce, the children are under compulsion to choose between the two parents and are invariably thrown out along with mother. This causes an intense mental suffering which in turn reflects upon the mental behaviour of a child. If the child happens to be accustomed to fathers affection, care and concern, which generally is the case, separation from the parent plays havoc with the mental process of the child. The loss of a parent thus has a lasting effect on a childs emotional growth. When it is followed by neglect in all conceivable spheres of child development on the part of the father, it takes in all the forms of omissions and emotionally hurts the child involved. This willful and unjustifiable infliction of pain and poignant suffering on a child cumulatively surfaces in the shape of behavioural or emotional disturbances. The treatment thus received by a child is known as emotional child abuse. Emotional child abuse is also referred to as verbal child abuse, psychological child abuse or mental injury of a child (Websters New World Medical Dictionary First Edition, 2001). Even otherwise, in the circumstances, the term mental injury would mean a psychological wrong treatment. It is note worthy that word any occurs before the physical and mental states mentioned in the provision, meaning thereby that mental injury need not be any specific one, but can be of any nature or kind. It is not that the mental injury thus inflicted on, or suffered by, a child should and would be similar to the mental abnormality as would be noticeable by everyone. It may or may not require a specialized psychiatric treatment. A child suffering from mental injury can be as normal as any other person. It may, however, impair the cognitive abilities and adversely affect the personality development of the child. The change in behaviour may be noticeable only by those who have some amount of intimate association with such a child. And, it is a matter of common knowledge, parental or family therapy is the best treatment to a child suffering from mental injury. Family therapy in such circumstances would include prevention of and remedying the paternal neglect. The mental injury to be construed in such cases, therefore, is confined only to such emotional disturbances as are endured by a child in consequence of neglect and refusal to maintain her on the part of father."

(Underlining and emphasis supplied)

The contesting parties herein are young and well qualified; they have long life lying ahead; one can only wish and hope that they understand the realities of life, shun and forget their respective bitter memories against each other and come together for the sake of their child.

4. Now, corning to the present petition, the petitioner is aggrieved of the two orders -- one passed by the Judicial Magistrate concerned and the other by the Revision Court -- granting maintenance both in favour of the wife as well as the minor child. Learned counsel for the petitioner submitted that admittedly Respondent no. 1 is a Doctor by profession, running a private clinic in partnership with his brother at Sopore where she earns at least Rs. 30,000/- per month, but the learned trial Magistrate did not consider such plea taken by the petitioner herein in his objections and, instead, without recording a finding to the effect that the applicant no. 1 was unable to maintain herself, granted maintenance of Rs. 6,000/- in her favour. He submitted that the Revision Court, too, failed to take note of this glaring fact brought on record of the trial court. The learned counsel submitted that since it was admitted that respondent no. 1 was a doctor by profession, she cannot claim to be unable to maintain herself; therefore, the impugned orders have resulted in miscarriage of justice for the petitioner.

5. From the impugned order dated 14.10.2013 passed by the learned trial Magistrate, it is seen that the learned Magistrate has duly recorded the objection of the petitioner as to his stand that applicant no. 1 was working as a therapist, earning an amount of Rs. 30,000/-. But, at the same time, the learned Magistrate has recorded the stand of the applicant no. 1s counsel that this job was left by her at the instance and insistence of the petitioner herein. Then, the learned Magistrate has proceeded to record that the petitioner herein has not placed any material on record to even prima facie substantiate his plea. That being the factual position recorded by the learned Magistrate in his order, it cannot be expected that the learned Magistrate or, for that matter, any court ought to act on the mere assertion of the petitioner herein to deny a legitimate right to maintenance of a wife. Such fact is not only to be brought to the notice of the trial Magistrate, but has, of necessity, to be proved before it to enable the Magistrate to come to a just conclusion. Grant of interim maintenance does not bring the litigation to its end. Even if such a matter is finally disposed of, any change in the circumstances can be brought to the notice of the Magistrate for appropriate orders. Till the parties adduce their respective evidences and the matter is finally heard, some interim sustenance for living has, of necessity, to be granted to the claimants. Having minutely gone through the impugned orders, I do not see them suffering from any impropriety, illegality or tantamounting to abuse of the process of the Court; they are, rather, legally well reasoned and passed to secure the ends of justice.

6. It may be observed here that from the photocopies of the record placed by the petitioner as annexures to the petition it transpires that the petition under Section 488 Cr. P. C. was presented before the learned Judicial Magistrate, 1st Class, Baramulla, in the last week of December, 2012. Four years and about four months have elapsed ever since, but, unfortunately, the petty petition under Section 488 Cr. P.C. seems to be still pending. In any case, it is hoped that, by now, the petitioner herein must have tendered his evidence to prove his assertion that Respondent no. 1 is a working women and is able to maintain herself of her own.

7. In the circumstances enumerated above, while disposing of this petition under Section 561- A Cr. P.C., the trial Magistrate is directed to ensure that the matter is decided positively within three months from the date of this order. In the event, there is any evidence yet to be produced by the parties, the case shall be posted for that purposes on weekly basis and brought to the logical conclusion within the time stipulated above. It is expected of the parties, especially Respondent no. 1 herein, that they shall not seek any adjournments.

8. Registrar Judicial of the Court is directed to transmit by fax this order to the learned Judicial Magistrate, 1st Class, Baramulla, for his information and compliance.

Petition disposed of