IDRIS Vs. STATE

JUDGEMENT

(1.) This Revision Petition is filed by wife Smt. Rukshana Begum (against her husband Nizam Elabi) against the order of the Guardian Judge dated 22 2. 1986 dismissing the application of the wife under Order IX, Rule 13 and passing an exparte order granting custody of two sons, Mohd, Hayat and Mohd. Ali to Respondent husband.

(2.) The parties are Muslim and were married on 29th April, 1977 according to Muslim rites. The first son was born on 1.11.1978 and the second son was born on .11.6.1980. According to the petitioner she was driven out of the house at Delhi in June, 1980. On 18.8.1980 the husband gave talaq to the wife. Through the interim orders of this court the custody of the sons with the mother was continued but the husband was given access to sons from time to time. After giving talaq the respondent-husband has married for the second time. It was stated in the supplementary affidavit that the petitioner had filed an application at Jaipur for maintenance under Section 125, Cr. P.C. in September, 1981. In the said application the learned Judge directed the respondent to pay Rs. 450.00 by way of maintenance to the wife and two sons. According to the wife the husband did not make any payment for maintenance of two sons since September, 1981.

(3.) At the time of the hearing the counsel for the respondent pointed out that the said order of maintenance was stayed on his filing a Revision Application in Rajasthan HNigh Court. According to him, the petition was not maintainable as there was neither error jurisdiction nor of law in the order passed by the Guardian Judge. He further submits that the petitioner was negligent in prosecuting the application for custody before the Delhi Court and did not submit any valid ground for the restoration of the application. The learned Judge, it is submitted, was, therefore, quite right in passing a custody order ex parte. The learned counsel further submits that when the impugned order was passed by the learned Guardian Judge on February 22, 1986 the elder son had already completed seven years of age and the younger son was about six years old. His submission is that in any case as of today the sons are above the age of seven and according to Muslim Law it is the father and father alone who is the guardian. The application for guardianship was filed by the husband on 9.11.1982.