NANOO MAL SAXENA Vs. STATE

JUDGEMENT

(1.) AN application was filed by Smt. Sheel Kumari claiming maintenance from her husband Nanoo Mai Saxena on the ground that he had treated her with cruelty and had failed to maintain her. These allegations were denied by the husband. The trial court rejected the application of Smt. Sheel Kumari but awarded a maintenance allowance of Rs. 50 for her infant child. Aggrieved thereby a revision was filed before the Sessions Judge, Nainital, which has been dismissed on 2nd August, 1976. Hence this revision.

(2.) I have heard the learned Counsel for the applicant and have also perused the impugned orders. It is argued by the learned Counsel that Smt, Sheel Kumari has not claimed any maintenance for her child and therefore, the Magistrate was not justified in allowing the same. He has also urged that so far a? Sheel Kumari herself is concerned, the Magistrate has found that the allegations of cruelty and neglect have not been found true. In these circumstances, ha submits that no maintenance allowance should have been awarded at all even for the child who was living with her.

(3.) I have carefully perused the application, filed on behalf of Smt. Sheel Kumari particularly para 4 and the relief sought in the application. She has made a specific mention in this paragraph that a child has been born to her while she was residing at her parents' place on 9-10-1974. The fact that Nanoo Mai Saxena is the father of the child is not denied in the written statement As a matter of fact, the allegation is that the husband had also partly borne his expenses at child's birth. Therefore, factually the position is clear that the minor child who is living with the mother now is the child of Nanoo Mai Saxena. On these pleadings, I am of the opinion that the claim of the child to maintenance cannot be repelled on the ground that no specific relief has been sought by Smt. Sheel Kumari in her application under Section 488, Cr. P. C. A similar view has been expressed by the Jammu and Kashmir High Court in Mst. Biro v. Behari Lai AIR 1958 Jandk 47: 1958 Cri LJ 1481: Where it is stated by the wife in her application that she has a son and a daughter by the non-applicant living and that is admitted on all sides the necessary facts which would entitle the children to maintenance have been pleaded and proved and, therefore, there is no ground for saying that as the mother has not claimed any maintenance for the children no order for their maintenance should be passed.