Virendra Saran - (1.) THIS revision has been preferred by Mahmood Ahmad against the order dated 2.5.1984 of Shri Tahir All, Judicial Magistrate-I, Barabanki passed in case No. 232 of 1983 under Section 125, Cr. P.C. granting Rs. 250 per month as maintenance to his minor daughters Km. Shaji and Km. Arshi, respondent Nos. 1 and 2. Smt. Nafisa Khatoon, maternal grandmother of Km. Shaji and Km. Arshi filed an application under Section 125, Cr. P.C. alleging that the mother of the two infants Km. Shaji aged slightly above two years and Km. Arshi aged 7 months (at that time) had died and that the applicant was not providing any maintenance for feeding and for the upbringing of the children. The applicant contested the proceedings and claimed that since he was father of the two children, he was entitled to their custody and, as such, no maintenance can be claimed on behalf of his children. The learned Magistrate has written a well-discussed and exhaustive judgment and has held that so long as the children were living with their maternal grandmother and maternal grandfather who were looking after the children and feeding them, the grandmother was competent to make application under Section 125, Cr. P.C. and in case the applicant wanted to claim custody, he could do so in proper forum.
(2.) I have heard learned counsel for the applicant and learned counsel for the respondents. So far as the grant of maintenance under Section 125, Cr. P.C. is concerned, there is no denial of the fact that the respondents Km. Shaji and Km. Arshi are daughters of the applicant and further that they are not living with the applicant and maintained by him till today. The applicant cannot escape from the liability of maintaining his own children. The children do not live of their own volition with one or the other person. In the instant case, the two children were left with their grandparents ever since they were in the cradle and the grandparents were bearing all their expenses in these hard days. In such a situation, the applicant is liable to pay the amount incurred on the children to the person who has been taking care of the children. It is also significant to note that the two children have lived with their maternal grandparents since their infancy and learned Magistrate has rightly held that they alone were the best persons to keep the children with them. The view taken by the learned Magistrate is perfectly sound. Learned counsel for the applicant has argued on the strength of the supplementary affidavit that now Km. Shaji (Respondent No. 1) is living with her maternal grandfather while Km. Arshi (Respondent No. 2) is living with her Mausa Shri Qadir. Learned counsel for the answering respondents has disclosed that child Km. Arshi is with her Mausa Qadir for the purpose of being educated in best possible manner and in getting good education. Learned counsel for the applicant has further submitted that Smt. Nafisa Khatoon, grandmother of the two children who had approached the Court for maintenance on behalf of Km. Shaji and Km. Arshi has died now. It is argued that since Smt. Nafisa Khatoon had died, the order of maintenance has come to an end. The argument has no force. Since the two children for whom the order of maintenance was passed are still alive, the order under Section 125, Cr. P.C. still survives, and as such, the only incidental order that can be passed in a case like the present is that the amount of maintenance so awarded may be claimed and given to those who are maintaining and taking care of the children. It shall be open to the maternal grandfather in respect of Km. Shaji and Shri Qadir in respect of Km. Arshi to make applications for enforcement of the order of maintenance and for payment of the amount of maintenance to them in respect of the respective child maintained by them so that the children may be fed and got proper education. The learned Magistrate may make such enquiry as he may consider proper to determine whether children are being maintained by them. The amount of maintenance may be realised from the applicant and paid to them. In view of my above discussion, this revision fails and is hereby dismissed. Stay order passed by this Court is vacated. The learned Magistrate shall proceed to realise the amount of maintenance from the applicant in respect of each of the answering respondents Km. Shaji and Km. Arshi and the same be paid to the person who is having care of the children in the light of my observations made above. Revision dismissed.;