MOHD MUNEERUDDIN KHAN Vs. RAKSHNANA MUNEER

JUDGEMENT

(1.) The questions that are raised in this criminal revision case are of some import to the claim of minor children for maintenance under Sec. 125 of the Criminal Procedure Code.

(2.) This Criminal Revision case arises out of M.C. 50/1975, on the file of the 6th Metropolitan Magistrate's Court, Hyderabad filed by the two respondents for maintenance against their father, who is the present petitioner. They were of very tender age, two years and one year old, at the time of filing the petition on 10th September, 1975. The father and mother were both employed and in fact the mother, it is so alleged, is getting more emoluments than the father. There were intermittent differences between the spouses and they were living apart on occassions. Consequently the petitioner issued on 27th of May, 1975, a notice to the wife to come back and live with him. When there was no response he filed a suit for restitution of conjugal rights on 18th of June, 1975. I am informed by his learned counsel that the suit is now going through its trial in the City Civil Court. Then the present petition was filed by the two children. However soon after filing of the petition, the wife and children joined the petitioner and lived with him till May, 1976. Once again the wife went away taking the children with her.

(3.) The 6th Metropolitan Magistrate rendered his decision in the petition on 23rd of November, 1976. On an examination of the evidence he came to the conclusion that there was no neglect or refusal on the part of the petitioner to maintain his children and the mother was responsible for the children staying away from the father. In that way he dismissed the petition. Thereupon, the respondents carried the matter in revision and the Metropolitan Addl. Sessions Judge held that the case of the wife was different from the case of the children. It may be that the husband was not guilty of neglect or refusal to pay maintenance to the wife. But the case of the children stands on a different footing. They have no separate volition or freedom of their own. They are completely dependant on their parents. The mother was entitled to have the custody of the children under the Mohemmadan law. The father has a duty to seek his children wherever they are and maintain them. His merely saying that if the children went back to him he was prepared to maintain them would not save him from the charge of neglect or negligence as postulated in Sec. 125 of the Code of Criminal Procedure. Consequently he allowed the revision, held that the children were entitled to maintenance and remitted the petition back to the trial Magistrate for fixing the quantum of maintenance. The husband has filed this revision petition challenging the view taken by the Metropolitan Addl. Sessions Judge.