MOHAMMED YUSUF KHAN Vs. MST. ZARINA

JUDGEMENT

(1.) THIS is a reference made by the learned Additional Secessions Judge No. 1, Jodhpur, with a recommendation that the order of the City Magistrate, Jodhpur, dated 3 -5 -1972, making an allowance of Rs. 50/ -. p.m. for the maintenance of Mohammed Yusuf Khan petitioner's minor son Allabeli, may be set aside and the case may be sent back to the learned City Magistrate, Jodhpur, for fresh decision in accordance with law.

(2.) THE reference arises under the following circumstances. Mohammed Yusuf was married with Mst. Zarina at Jodhpur on 16 -7 -1966. After the marriage a son was born in lawful wedlock whose name is Allabeli. On 19 -1 -1970, Mst. Zarina was divorced by her husband Mohammed Yusuf Khan and the minor child remained with her. As Mst. Zarina had no sufficient means for the maintenance of her minor son and as Mohammed Yusuf Khan had declined to maintain the minor, she appealed to the learned City Magistrate, Jodhpur, for grant of a maintenance allowance for her son Allabeli at the rate of Rs. 60/ -, p.m. Notice of this application was even to Shri Mohammed Yusuf Khan, who filed a written reply in the court of the learned City Magistrate denying his liability to pay any allowance for the maintenance of his minor son. The learned City Magistrate made an enquiry into the application and after recording evidence, led by the parties arrived as a conclusion that Allabeli minor was entitled to the minor was entitled to the grant of maintenance at the rate of Rs 50/ -, p.m. with effect from 30 -11 -1970. Aggrieved by this order. Mohammed Yusuf Khan filed a revision petition in the court of he learned Sessions Judge. Jodhpur, from where it was transferred to the curt of the Additional Sessions Judge No. 1. Jodhpur, for disposal according to law. The learned Additional Sessions Judge heard the parties and was of the view that no order for maintenance could legally be passed by the City Magistrate, Jodhpur, under Section 488 of the old Criminal Procedure Code unless neglect or refusal on the part of the father to maintain the child was proved Upon review of the entire evidence led by the parties, the Additional Sessions Judge came to a finding that no such proof of neglect or refusal was given and that the learned City Magistrate did not consider this aspect of the case and passed the impugned order which is clearly unsustainable in the eye of law. Accordingly he has made this reference.

(3.) PRINCIPLES of Mohammedan Law by D.F. Mulla 15th Edn.