QAISER JAHAN BEGUM Vs. RIZWAN ULLAH KHAN

JUDGEMENT

(1.) THIS revision involves a very interesting question of law. Smt. Qaiser Jahan Begam is admittedly the wife of Rizwan Ullah Khan. After their marriage she performed her marital obligations at the residence of her husband in village Hasanpur Luhari, Police Station Thana Bhawar, district Muzaffarnagar. On 28-1-1977 she filed an application under Section 125 CrPC in the court of the first class Magistrate Kairana praying for maintenance of Rs. 200/- per month from her husband Rizan Ullah Khan. She alleged that her husband was a gambler, a vegabond and liquor addict. When she asked him to give up these bad habits she was ill-treated and beaten and thereafter, while she was ill he left her at her father's place in village Hasanpur Luhari. A year prior to the filing of the petition she had also given birth to a daughter begotten of her husband. She alleged that her husband had failed to maintain her as well as her child. She had no means to make both ends meet. Hence she prayed for maintenance allowance of Rs. 200/- per month.

(2.) THE applicant denied his liability to pay maintenance. He denied that the was addicted to liquor, gambling or to have mixed in bad company. He also denied having ill-treated his wife or to have turned her out of his house. He pleaded that as the marriage of his brother-in-law was fixed on 22nd June 1976 his wife had voluntarily gone to her father's place, a few days in advance, to attend the marriage and she had carried all her ornaments with her. Since then inspite of his best efforts his wife has refused to come back and to live with him with the child. He stated specifically that he has always been willing to bring his wife home and he was still prepared to do so. As for his income he alleged that it was only Rs. 150/- per month.

(3.) UNDER Section 125 (1) (b) referred to above, there can be no doubt that if the father neglects or refuses to maintain his minor child, unable to maintain himself, he would be liable to pay maintenance allowance upto an amount of Rs. 500/- under the aforesaid section. The sins of the wife cannot be visited upon the child. If the wife chooses to remain away without just cause, the child in her custody is not to starve and die. She may not be entitled to maintenance allowance under Section 125 (1) (a) CrPC but, at the same time, such deprivation would not take away the right of the minor child to be maintained under Section 125 (1) (b) CrPC. In other words the minor child in the custody of her/his mother must be maintained, if she/he is unable to maintain herself/himself, as required by the aforesaid section. The word 'unable to maintain' itself used in this connection are not without meaning. Surely a female child aged about 1 1/2 years, as in the present case cannot maintain herself and, therefore, she would in law be entitled to maintenance without any reservations. But it is significant to note that under Section 125 (1) Explanation (a) the word 'minor' has been defined. 'Minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority. UNDER the Indian Majority Act, 1875 a person is deemed to be a minor till he bad attained the age of 18 years. It is not uncommon to find a child aged about 14-15 years earning his livelihood by petty employments. In those circumstances, even though he may be a minor, yet since he is able to maintain himself, he would not be entitled to maintenance under Section 125 (l)(b) CrPC. Such being the position of the law, I have no doubt in my mind that a father of a minor child in the custody of her mother, who lives separately away without justifiable reasons, would independently in his/her own right be entitled to receive maintenance allowance, if he/she is unable to maintain him/herself. In support of this view the following cases may be referred. In Bashiran v. Nathu, AIR 1960 Rajasthan 255, it has been held as follows :