MAHMOOD AHMAD Vs. SHAJI

JUDGEMENT

(1.) THIS revision has been preferred by Mahmood Ahmad against the order dated 2.5.1984 of Shri Tahir All, Judicial Magistrate-I, Barabanki passed in case No. 232 of 1983 under Section 125, Cr. P.C. granting Rs. 250 per month as maintenance to his minor daughters Km. Shaji and Km. Arshi, respondent Nos. 1 and 2. Smt. Nafisa Khatoon, maternal grandmother of Km. Shaji and Km. Arshi filed an application under Section 125, Cr. P.C. alleging that the mother of the two infants Km. Shaji aged slightly above two years and Km. Arshi aged 7 months (at that time) had died and that the applicant was not providing any maintenance for feeding and for the upbringing of the children. The applicant contested the proceedings and claimed that since he was father of the two children, he was entitled to their custody and, as such, no maintenance can be claimed on behalf of his children. The learned Magistrate has written a well-discussed and exhaustive judgment and has held that so long as the children were living with their maternal grandmother and maternal grandfather who were looking after the children and feeding them, the grandmother was competent to make application under Section 125, Cr. P.C. and in case the applicant wanted to claim custody, he could do so in proper forum.

(2.) I have heard learned counsel for the applicant and learned counsel for the respondents. So far as the grant of maintenance under Section 125, Cr. P.C. is concerned, there is no denial of the fact that the respondents Km. Shaji and Km. Arshi are daughters of the applicant and further that they are not living with the applicant and maintained by him till today. The applicant cannot escape from the liability of maintaining his own children. The children do not live of their own volition with one or the other person. In the instant case, the two children were left with their grandparents ever since they were in the cradle and the grandparents were bearing all their expenses in these hard days. In such a situation, the applicant is liable to pay the amount incurred on the children to the person who has been taking care of the children. It is also significant to note that the two children have lived with their maternal grandparents since their infancy and learned Magistrate has rightly held that they alone were the best persons to keep the children with them. The view taken by the learned Magistrate is perfectly sound.