WAHID KHAN Vs. SARWARI

JUDGEMENT

(1.) AN application under Section 125 Cr.P.C. was filed by Shrimati Sarwarl on 20th October, 1976 claiming maintenance allowance of Rs. 75/- for herself and Rs. 50/- for her minor son against her husband Wahid Khan, on the allegation that she was his legally married wife and the latter had failed to maintain her. Wahid Khan was in military service and was drawing Rs. 400/- per month. The husband contested the claim of Shrimati Sarwari. He pleaded that she had been divorced in 1973 and that Sayeed was not his son. Both the parties led evidence in support of their respective claims. The special Judicial Magistrate, first class, after a consideration of the entire evidence on the record came to the conclusion that Shrimati Sarwari was the legally wedded wife of Wahid Khan, that the latter had failed to maintain her and that Sayeed was the legitimate child of Wahid Khan. On these findings a maintenance allowance of Rs. 125/- per month-Rs. 75/-per month for the wife and Rs. 50/- per month for the minor son-was allowed by the trial court from the date of his order viz. 11th July 1977. Aggrieved thereby a revision was filed before the Sessions Judge, Farrukhabad which had been dismissed on 28th September, 1977. Thereafter the applicant has approached this Court under Section 482 Cr.P.C

(2.) I have heard counsel for the parties and have also perused the impugned order. It has been argued by the learned counsel for the applicant that Shrimati Sarwari being a divorced Muslim wife is not entitled to any maintenance from her husband beyond the period of Iddat. The argument is tnat the personal law relating to Muslim community is in conflict with Section 127 (3) Cr.P.C. 1973. Section 127 (3) runs as follows;-

(3.) WITH regard to the maintenance allowance payable to Sayeed, the son of the applicant, it is noticeable that Wahid Khan has denied his legitimacy. He has imputed incorrect allegations of unchastity on his wife and has disclaimed that Sayeed was born of a wedlock between him and Shrimatl Sarwari. This plea has been found false by both the courts below. The right of the minor son to be maintained by the father is an absolutely Independent right unconnected with the right of his mother. The father is under a legal obligation to maintain his child. Even assuming for the purposes of argument that the child was illegitimate-which is not a fact-even then Waheed Khan would be liable to maintain him. In this connection reference may be made to the decision of Km Nafees Ara v. Asif Saadat AH Khan, 1962 AWR 627 wherein maintenance was claimed for an illegitimate child under Section 488 CrPC (old). It was contended that an illegitimate child has no right to be maintained by his father under the provisions of Muslim Law. This argument was repelled in the following words ; "The fact that the Mohammedan Law makes no specific provision for granting or prohibiting the grant of maintenance to an illegitimate child against the father, does not lead to the inference that the Criminal Court or Civil Court has no jurisdiction to grant such maintenance. I he provisions of the Code of Criminal Procedure are part of the general law of the land which is in the absence of any contradictory provision in the Muhammadan law, as binding on Muhammadans as other citizens of this country. Therefore, apart from Muhammadan Law, the illegitimate child has a right to grant of maintenance from the father."