MOHD. AYUB KHAN Vs. SAIRA BEGUM

JUDGEMENT

(1.) THE appellant being aggrieved by order dated 05.11.1999 passed in M.J.C. No. 37 of 1998 by the learned Second Additional District Judge, Bilaspur rejecting the appellant's application filed under Section 9 read with Section 25 of the Guardian and Wards Act has preferred this appeal under Section 47 of the Guardian and Wards Act.

(2.) THE brief facts leading to the present appeal are, that the present appellant Mohd. Ayub Khan was married with respondent Saira Begum on 17.05.1990. During the subsistence of the marriage the parties were blessed with Adil Khan, Akib Khan and Mohd. Ali Khan. On 05.10.1996 the present appellant for the reasons best known to him divorced the respondent. While leaving the matrimonial house the wife left with her three children and started staying with her father. Finding that life was difficult and it was not possible for her to maintain the children she made an application under Section 125 of the Code of Criminal Procedure somewhere in the year 1997. Along with the application she also made an application for grant of interim maintenance. The main petition and the application for grant of interim maintenance were opposed tooth and nail by the present appellant, therefore, the application for grant of interim maintenance even for those minor children who were about 7, 5 and 3 years was rejected. The appellant after realizing that the eldest son has become seven years of age, taking shelter under the Shariyat filed an application under Section 9 read with Section 25 of the Guardian and Wards Act seeking custody of the eldest son namely Adil Khan. This petition was filed on 11.11.1998. It is worth noting that the petition filed under Section 125 Cr.P.C. was also proceeding on one side and the wife was required to appear in these proceedings.

(3.) FROM the records it appears that during the pendency of the proceedings under Section 125 Cr.P.C. and these proceedings or after divorcing the wife the appellant did not pay even a paisa towards the maintenance of his three children. The petition filed under Section 125 Cr.P.C. was rejected by the trial Court but in revision the order was set aside and the matter was remitted to the trial Court. After recording the evidence and hearing the parties, by order dated 2.05.2001 the learned Judicial Magistrate, First Class, in Misc. Criminal Case No. 35 of 2001 awarded Rs. 300/ - each to every minor. The alleged bonafides of the appellants are writ large.