SAYYAD MOHAMMAD VALLAD Vs. SHALAMBI AND ANOTHER

JUDGEMENT

(1.) This revision is directed against the order of the Chief Judicial Magistrate, Dharwar, granting an application under Sec. 125 of the Code Criminal Procedure and awarding maintenance to Smt. Shalambi who is Respt-1. The petitioner -Sayyad Mohammed Vallad married the Respt-1 on 20.6.1971 and out of their wedlock, it was stated that Respt-2 - Noorjahan-minor girl, at present three years, was born on 2.2.1972. Both the husband and wife, it appears, lived peacefully for a couple of months and thereafter according to the Respt-1, the husband started ill-treating her. He has been married to a second wife, with the result that the Respt-1 started living with her parents. As a result of all that the Respt-1 filed the petition under S. 123 of the Code Criminal Procedure for maintenance to herself and to her daughter. She alleged that the petitioner-husband was earning Rs. 1,200 p.m. from his fire-wood depot and that she herself and her daughter should be provided for with maintenance of Rs. 300 per month.

(2.) The petitioner-husband contended that the Respt-1 was divorced by him on 14.11.1972 and that a Talaknama was written which she refused to accept. Thereafter the said Talaknama was published in the paper and the same was denied by the Respt-1 under a separate news item. The petitioner-husband thereby contended that the Respt-l is not entitled to claim maintenance. It was also stated that the Respt.-2 is not a legitimate child as she was born less than nine months from the date of marriage. As regards the quantum of maintenance it was stated that the income of the husband hardly exceeded Rs. 200 per month.

(3.) The Respt-1 gave her statement as PW.1 and examined her uncle PW. 2 while the petitioner-husband gave his own statement. The learned Magistrate considered this evidence and held that the paternity of the Respt-2 was proved. Although she was born less than nine months from the date of marriage, yet both husband and wife had access to each other from before and she could legitimately be conceived. The learned Magistrate also held that although the Respt.-1 was a divorced wife yet she can claim maintenance under S. 125 of the Code Criminal Procedure in view of tho definition of 'wife' provided therein. Relating to the quantum of compensation he considered that Rs. 70 p.m. for the wife and Rs. 30 p.m. for the daughter would be sufficient maintenance. Accordingly, he made the order against the husband. He felt aggrieved or the decision of the learned Chief Judicial Magistrate, Dharwar, and preferred the present revision.