BASHIRAN Vs. NATHU

JUDGEMENT

(1.) This is a reference by the Additional District Magistrate, Jodhpur, in a matter under Section 488, Cr. P. C., and arises under the following1 circumstances.

(2.) Petitioner No. 1 Mst. Bashiran is allegedly the wife of the opposite party Nathu. The latter has had two children by Mst. Bashiran: (1) Mst. Banu a daughter aged about seven years and (2) Allahbux a boy about four years and a half, who are petitioners Nos. 2 and 3. On 17-7-1958, Mst. Bashiran, applied to the Extra First Class Magistrate No. 3, Jodhpur City, that she and the opposite party Nathu had been married about 20 years ago but the latter had married another woman named Fatma about four years ago, and, therefore, she wanted to live separately from her husband. It was also alleged that the opposite party did not care at all for her or for her children, and, therefore, she claimed maintenance under Section 488 Cr. P. C.

(3.) The opposite party Nathu resisted this application. His case was that he had divorced Mst. Bashiran on 16-4-1958, and, therefor, no marital tie subsisted between them, and, therefore, he was not bound to maintain her. He also contended that she had started living separately from him right from 1954 without any rhyme or reason and thereafter at his request came back once but again left him and completely declined to live with him. As regards the two children, his case was that he had asked his former wife to send both the children to him but she flatly refused to do so. He also submitted that he was prepared to keep the children with him and maintain them but if Mst. Bashiran would not send them to him, he was not liable to pay for their maintenance to suit her convenience.