HIGH COURT OF RAJASTHAN
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N.M.Kasliwal, J. -
(1.)This is a petition under Section 482 Criminal Procedure Code filed by Smt. Wafatan, wife of non-petitioner, Jamil Ahmed, in proceedings for maintenance under Section 125 Criminal Procedure Code. It is not in dispute that the petitioner is the lawfully married wife of the non-petitioner and at the time when the petition was filed on November 20, 1978 she had a daughter aged 2years and a son aged 6 months. The petitioner claimed maintenance for herself and her children on the ground that she was deserted by the non-petitioner without any Jarful excuse and had neglected to pay any maintenance. The petition was contested by the non- petitioner on various grounds and the learned AddI. Judicial Magistrate No. 2 Kota by his order, dated. April 13, 1981 dismissed the application filed by the petitioner on the ground that she had failed to prove that she had been deserted by the non-petitioner without lawful excuse. A revision petition filed by the petitioner was also dismissed by the learned AddI. Sessions Judge No. 2, Kota, by his order, dated February 8, 1983. In these circumstances the present petition had been filed by the wife Soot Wafatan challenging the orders of the courts below.
(2.)A notice was given to the non-petitioner but nobody has appeared on his behalf inspite of notice.
(3.)Mr. Sharma, learned counsel for the petitioner did not press the claim for maintenance so far as the petitioner herself is concerned. It was however, argued that so far as the two minor children are concerned who are admittedly Jiving with the petitioner, both the lower Courts have not given any reason as to why the maintenance was not allowed with regard to two children. It was contended that even if it was found by the Courts below that the petitioner herself had left the non-petitioner and had come to live with her parents, this does not deprive the claim of maintenance so far as the minor children are concerned. In support of the above contention learned counsel placed reliance on Chama Padamamma and another v. Chamal Nars; 1 2 . 3 Reddy : Mohammed Yusaf Khan v. Mst. Zariana and Sribataha Bank v. Musamat Padmaz . In this case it is not in dispute that one daughter aged 2 years and son aged 6 months were living with the petitioner on the date of filing of this petition on November 20, 1978. Both the above children are still minor and even if they are living with the petitioner still it was the duty of the non- petitioner who is the father of these minor children to pay maintenance for the above two children. It is nowhere the case of the non-petitioner that he ever paid any amount for maintaining the above children during all this period. It is also not in dispute that the non-petitioner is employed in Municipal Council, Kota and was drawing a salary of Rs. 500/- p.m. at the time of filing of the petition before the trial Court. Thus each one of the two children are entitled to maintenance of Rs. 50/- p.m. The petitioner who is the mother of the two children and who is maintaining the two children at present will be entitled to get this amount. The petition is accordingly allowed. The non- petitioner Jamil Ahmed shall pay by way of maintenance Rs. 50/- p.m. to each one of the two minor children from the date of the filing of the application, i.e., November 20, 1978 and the petitioner shall be entitled to receive that amount till the above two children become major. The non-petitioner is granted three months time to pay the arrears of maintenance and he shall also pay the maintenance now falling due for every month by the 15th of next succeeding month. Petition allowed
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