KHAMER JAHAN Vs. MAHMOOD HUSSAIN

JUDGEMENT

(1.) This case had a chequered career and again it has come up before this Court. In M.C. No. 8 of 1963 the learned Seventh City Magistrate by his order dated 23rd August, 1964 rejected the claim of Ahmed Khatoon who was the wife of the respondent here in but allowed maintenance to the extent of the respondent's two minor children at the rate of Rs. 25 per month. Ahmed Khatoon filed Crl, M.P. No. 171 of 1965 on behalf of her children for the recovery of arrears of maintenance to the extent of Rs. 450 being due for a period from 23rd August, 1964 to 23rd May, 1965. After the issue of a warrant for attachment, the father of the children paid an amount of Rs. 150 and pleaded discharge to the extent of Rs. 300. It appears that another application Was filed on behalf of the minors claiming arrears of maintenance to the tune of Rs. 900 less Rs. 150 for the period from 23rd August, 1965 to 23rd February, 1966. Yet another application being Crl. M.P. No. 341 of 1966 was filed on behalf of the minors claiming Rs. 250 as arrears of maintenance from 24th April, 1966 to 23rd September, 1966. The father of the minors represented to the Court that he would pay up the arrears claimed and therefore, the miscellaneous petition Was adjourned and posted to 28th October, 1966 when itwas reported that the mother of the minors Ahmed Khatoon was killed in a motor accident. Thereafter it appears Mahboob Khatoon claiming to be the grandmother of the minors filed two Crl. M.Ps. being Nos. 373 and 374 of 1966 in connection with Crl.M.Ps.No. 171 of 1965 and 341 of 1966. These petitions were opposed by the respondent herein. The learned Magistrate allowed the petition and directed the respondent, the father of the children, to deposit an amount of Rs. 500 in Court which were to be drawn by Mahboob Khatoon at the rate of Rs. 50 per month till the pendency of the civil proceedings which were initiated by the respondent herein for the custody of the minor children. When the warrants were returned after service on 23rd December, 1966 the learned Magistrate directed the father of the minors to deposit an amount of Rs. 500. Against this order a revision petition was filed before the learned Chief City Magistrate which was dismissed in limine. Although the respondent herein had already filed a revision petition in the Court of the Chief City Magistrate against the order of the learned Magistrate dated 13th February, 1966,I have not been able to appreciate why these two separate petitions were filed. In any case the revision petition filed against the order dated 13th December, 1966 was dismissed by the learned Chief City Magistrate against which another revision petition was filed in this Court, but it was dismissed even at the stage of admission on and May, 1967. But a revision petition which was filed by the father of the minor against the order of the learned Seventh City Magistrate dated 23rd December, 1966 it appears, was still pending ir. the Court of the Chief City Magistrate and it was only after the dismissal of this petition that the alleged grandmother of the minors filed another miscellaneous petition Crl. M.P. No. 267 of 1968. This petition was resisted by the father of the minors alleging that the alleged grandmother was not the legally married wife of his father-in-law and she was not maintaining the children in a proper manner. The learned Magistrate accepted the objections raised and by his order dated 5th Novembsr, 1969 held that Mahboob Khatoon the alleged grandmother of the minors was not entitled to execute the order of maintenance on behalf of the minors. Against this order a revision petition was filed and the learned Chief City Magistrate dismissed the petition on 20th February, 1970 agreeing with the conclusions of the learned Magistrate and therefore, Mahboob Khatoon has come up in revision to this Court.

(2.) A preliminary objection was raised by the learned Counsel for the respondent Mr. Abul Khair Siddiqui that the revision petition in this Court has been filed after the expiry of the period of limitation and he refers me to Article 131 of the Limitation Act which shows that a period of 90 days has been allowed for making application to the Court for exercising its power of revision from the date of the order sought to be revised. According to the learned Counsel the actual order which, is to be revised is that of the Magistrate dated 5th November, 1969 and therefore, this revision petition is clearly beyond the prescribed period. I do not find much substance in his argument because this revision petition, in my view is a continuation of the revision petition, that was filed in the Court of the Chief City Magistrate. In case the learned Chief City Magistrate was of the view that the petition ought to be allowed, he would have made a reference to this Court and that would have been within time. Therefore, the order of rejection also has to be taken into account in the same manner from which the period of limitation has to be assessed.

(3.) To revert to the main point that has to be considered and decided in this petition is whether a person legally authorised would be entitled to receive maintenance on behalf of the minors. The primary object of maintenance is for the upkeep of the children, to look after their food, clothing, education and other necessities of life. In these circumstances I think the person who keeps the children in his custody is the proper person to receive the maintenance allowance. A criminal Court is not the proper forum to decide the legality of custody. No doubt the father is the natural guardian according to Muslim law, but nowhere the Criminal Procedure Code lays down that the maintenance is liable to be paid to a natural or legal guardian. I have been referred to a case in Dinsab Kasimsab v. Mahamad Hussen. Though a civil case, but the learned Judges had occasion to consider the scope of section 488, Criminal Procedure Code and it was observed that the criminal Court is concerned only with the fact of its custody and not the propriety of that custody. I fully agree with this observation and I think it is unnecessary for a criminal Court to go into this question. Prima facie it has to see who is having the custody of the minors and after satisfying itself on this question, maintenance should be directed to be paid to the person claiming to be the custodian of the children. In the present proceedings a judgment of the civil Court has also been filed in which the father of the minors had claimed custody of the children being their natural guardian. But this case was dismissed which also indicates that the children are being looked after by a person other than the father. Whoever is looking after the children, is certainly not discharging this duty gratuitously and must have been spending money or. their maintenance. In the previous petitions which were filed on behalf of Mahboob Khatoon or in Crl. M.P. No. 267 of 1968 the question that the children were not in the custody of Mahboob Khatoon was never raised, which shows that the children are in the custody of Mahboob Khatoon and in these circumstances she would be entitled to get arrears of maintenance as prayed for. Therefore, 1 allow this revision petition, quash the order of the Magistrate and direct that Mahboob Kahtoon would be entitled to get the arrears as claimed by her in her petition Crl. M.P. No. 267 of 1968.