K.D. Sharma, J. - (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. I have carefully gone through the record and heard the arguments advanced by Shri Pyare Lal Ojha appearing on behalf of Mohammed Yusuf Knan In support of the reference it has been argued by the learned Counsel appearing on behalf of Mohammed Yusuf Khan that the impugned order direct leg payment of maintenance of Allabeli minor, cannot be upheld in view of the fact that no evidence in proof of neglect or refusal on the part of Mohammed Yusuf to maintain his minor son has been adduced in this case and that the City Magistrate ought to have determined this crucial question before making an allowance for the maintenance of the minor. Shri M.M. Singhvi appearing on behalf of Mst. Zarina, on the other hand, contended that it is established by sufficient evidence on the record that Mohammed Yusuf has neglected or refused to maintain his child. In support of his above contention he invited any attention to the statement of Mst. Zarina, wherein she clearly stated on oath that her husband Mohammed Yusuf Khan never paid any sum for the maintenance allowance for the child and that she requested her bus band through her relatives to pay some maintenance allowance for the could but he did not give any sum. Shri M.M. Singhvi further urged that the learned City Magistrate has considered the question of refusal or neglect on the part of Mohammed Yusuf Khan to pay maintenance allowance and has arrived at the following conclusion: ...[VERNACULAR TEXT COMITTED]...
(3.) PRINCIPLES of Mohammedan Law by D.F. Mulla 15th Edn. The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of child. xSj lk;y dk cPpk vHkh dsoy 2 1@2 lky dh mej dk gS vkSj dkuwu ds vuqlkj lk;yk dh fgQktru es gS vkSj oks gh ijofj'k djrh gS A xSj lk;y dk mijksDr mtj dkuwu ds vuqlkj dksbZ out ugh j[krk gS vkSj blfy, eS ;g gksYM djrk gwa A fd xSj lk;y dks vius cPps dh ijofj'k ds fy, [kpkZ nsuk ykteh gSA;