JORARAM Vs. MOHINI

JUDGEMENT

(1.) THIS is a husband's revision arising out of the proceedings under Section 488 of the Code of Criminal Procedure, 1898 which corresponds to Section 125 of the new Code, The learned Sessions Judge, while accepting the revision of the non -petitioner (wife) has ordered a maintenance of Rs 100/ -per month to Smt. Mohini and has further awarded a maintenance of Rs 50/ -per month to each of the two minor daughters. The learned Magistrate had dismissed the application of the non -petitioner.

(2.) SOME facts are no longer in dispute and they arc these: Smt. Mohini, the non -petitioner, is the married wife of Joraram, the petitioner and out of the wedlock two daughters were horn and each of them is a minor and is residing with Smt Mohini. At the time when the application under Sections 488 CrPC, 1898 was filed on May 22, 1973 by the non -petitioner, the two daughters were aged 8 years and 11 months respectively. As per the case of the non -petitioner she was living with her parents since Smt. year 2029 and the petitioner having sufficient means to maintain her, had refused her or neglected to maintain her and her two minor children. In the application, all that has been mentioned was that the petitioner was having 70 big has of agricultural land and also a share in a well. It was neither mentioned as to what was the monthly or annual pursuit. According to the non -petitioner the petitioner treated her with cruelty and turned her out of the house and as such, she was compelled to live with her parents. In reply to the application, the petitioner came out with a case that the non -petitioner is an unchaste lady and so far the younger minor daughter is concerned, she was not conceived by him and was not his daughter. He did not come out with an offer to maintain the non -petitioner on condition of her living with him. After the evidence for the parties were recorded, the learned Magistrate dismissed the application and all that need to stated here is that the approach of the learned Magistrate was not correct. The learned Sessions Judge, reversing the order of the learned Magistrate, awarded the a mint of maintenance from the date of the order of the Magistrate that is, November 8, 1976 at the rate already stated earlier.

(3.) SO far as the two minor children are concerned, it may be stated that the minor children have no independent Volition. They are living with their mother. It is the duty of the father to maintain the minor children if the father has means to maintain and if he fails to maintain them, the minors are entitled for maintenance. If he wants the custody of the minors to which he may be entitled in law, he must take proper steps, but so long as the custody of the minors is with the mother, the mother is entitled to claim maiatenance for that.