GH QADIR Vs. ZAREEFA

JUDGEMENT

(1.) THE learned C. J, M. Anantnag has found fault with the order of the Magistrate passed under Section 488 Cr - P. C. on two grounds. Firstly, that the magistrate has nowhere found that the respondent was guilty of refusal or neglect. Secondly that the rate of maintenance has been fixed by the magistrate arbitrarily. The petitioner had claimed maintenance for her minor children. Her case was that the children are in her custody and that the respondent - husband had neither cared to pay nor even made any provision for their maintenance. On the other hand, the case of the respondent was that he was not under obligation to make any provision for the maintenance of the children as long as they remained in the custody of their mother. In the circumstances the question as to whether the respondent had refused or neglected to maintain his children did not arise. He had -not joined issues on this point. On the other hand, he had tried to oppose this application on the ground that he was not under any obligation to pay the maintenance. That was clearly wrong. The learned CJM has not noticed this aspect of the matter and thereby misdirected himself. If on the pleadings neglect and refusal was impliedly conceded the questions of raising any issue or determining the same did not arise. The magistrate could not be expected to give finding on questions which did net arise from the pleadings and were admitted directly of indirectly. The first ground taken by the CJM is manifestly unfounded.

(2.) ) So far as the second ground is concerned, it is equally without any foundation. The learned magistrate has determined the rate of maintenance keeping in view the age of the children, the income of their father, as also the average standard of life in the village; these are the relevant factors for determining the quantum of maintenance. Consequently it cannot be reasonably contended that the rate of maintenance has been fixed arbitrarily by the magistrate, For these reasons. I am not inclined to accept this reference. It is hereby rejected.