KM NAFEES ARA Vs. ASIF SAADAT ALI KHAN

JUDGEMENT

(1.) Kumari Nafis Ara through her mother Smt. Khatoon filed an application under Section 488 of the Code of Criminal Procedure on 25-9-1954 in the court of Sri Farkat All Magistrate. That application was dismissed on 17-12-1954. Thereupon the applicant filed a suit in the court of Munsif South, Lucknow claiming a declaration that she was the illegitimate daughter of the respondent Asif Saadat Ali Khan. That suit was decreed. No appeal or revision was filed. The decree became final. Thereupon the petitioner, who is aged 9, filed a fresh application under Section 488 of the Code of Criminal Procedure in the court of the Magistrate and the application was dealt by Sri Sadhu Singh and was dismissed by him. A revision, application No. 74 of 1960, was filed in the court of the sessions Judge, Lucknow. The learned Sessions Judge has by his order dated 14-8-1961 made this reference to the High Court recommending that the order of Sri Sadhu Singh be set aside and the learned Magistrate directed to decide the application on merits without regard to the fact of the dismissal of the previous application.

(2.) In the reference I have heard the learned counsel for the parties, particularly Sri Faruq Hasan who has argued for the opposite party at considerable length and has raised several points of importance.

(3.) The first contention of the learned counsel is that admittedly Km. Nafis Ara claims only the status of an illegitimate child. The learned counsel has referred to the Mahomedan Law and urges that the Mahomedan Law makes no provision for grant of any maintenance to an illegitimate child. Ali the books on Mahomedan Law referred to by the learned counsel make, however, a specific reference to the provisions of Section 483 of the Code of Criminal Procedure. I do not dispute that the Mahomedan Law makes no specific provision for the grant of maintenance to an illegitimate child against his father. I would, however, like to point out that there is no prohibition either. The provisions of the Code of Criminal Procedure are part of the general law of the land which, in my opinion, is, in the absence of any contradictory provision in the Mahomedan Law, as binding on Mohammedans as other citizens of this country. I am, therefore, unable to see any force in the contention of the learned counsel that because the Mahomedan Law makes no provision, the civil court had no jurisdiction to give a decree for maintenance. Further, it has to be borne in mind that the civil court has in fact not given any decree for maintenance. It has only granted a declaratory decree holding that Km. Nafis Ara is an illegitimate child of the respondent.