Abdul Razak vs Abdul Khadar Jeelani and Others

G. Narendra, J.—Heard the learned counsel for the petitioner.

The petitioner is a Sepoy in the Indian Army of 22 Marata Light Infantry, serving the nation by protecting the borders of the Country. The petitioner is aggrieved by the order dated 31.07.2015 rendered in Criminal Misc. No. 21/2015 has preferred this petition.

The origins of this case is in the petition moved under Section 125 of Cr.P.C by the mother and natural guardian of the petitioners, who are minors and the sons of the petitioner herein.

The case of the respondents herein is that petitioner married their mother one Shamshad Begum on 24.03.2003 as per the customs and traditions prevailing in the community. The marriage was consummated, and out of the wedlock, the respondents (petitioners before the trial Court) were born. It is further admitted by the respondents herein that the natural guardian is currently employed as Physical Teacher in Government Model Higher Primary School, Police Colony, Raichur.

It is contended that after the birth of the respondents herein, the petitioner herein, once again entered into wedlock with another lady by name Mahejabeen on 22.11.2010, who gave birth to a male child by name Mohd. Ruvat. It is contended by the respondents herein that the petitioner is both legally and morally bound to maintain them till they attain majority and that after he contracted the second marriage their mother the natural guardian was thrown out of the house and with no other option the mother had to leave the matrimonial home along with the respondents herein.

It is stated that the respondents herein got issued a legal notice on 30.12.2014 calling upon the petitioner herein to provide adequate money for their maintenance and security for their future and that the said legal notice did not commend a reply. It is averred by the respondents herein that the petitioner herein is drawing a salary in excess of Rs. 35,000/- from the Indian Army and that apart the family possess beetle nut garden, mango garden, landed property and house property in Sagar Town of Shivamogga District. With the above facts the respondents herein have sought for a monthly maintenance calculating@ Rs. 10,000/-.

The petitioner herein entered the appearance and denied that he has drawing in excess of Rs. 35,000/- nor does he own beetle nut garden or any landed property. On the other hand, he contended that the mother i.e. the natural guardian of the respondents herein is gainfully employed in a Government School and that fed up with her attitude, he had sent Talaq on 20.12.2014 which was duly served upon her on 31.12.2014 and that prior Talaq notice was sent to her, he also filed O.S. No. 25/2015 and the same is pending. It is contended that the mother of the respondents herein is competent of taking care of the respondents herein and that when he tried to meet the respondents herein on the occasion of Cessions (Khatna), their mother spoiled the occasion and even filed a complaint before the Superintendent of Police at Raichur on a cooked up story. It is further contended by the petitioner herein that apart from his second wife and children begotten out of the second marriage, he has to take care of his aged parents and that he is ready to take back the respondents herein and their mother and natural guardian. It is alleged that she is the guardian of the respondents herein and she had deserted him and on these grounds he prayed for dismissal of the petition.

On a summarization of the above facts, the undisputed facts that can be collated are that there is no dispute on the paternity of the petitioner. There is no dispute as to the marriage between the guardian of the respondents herein and the petitioner herein. It is also not in dispute that the respondents herein are minors and the petitioner herein is gainfully employed and is also holding landed property and house property. The sole contention of defence as raised on behalf of the petitioner herein is that the natural guardian of the respondents herein, who is first wife, is gainfully employed and she is competent to maintain the respondents herein. In sum and substance this is the only ground or defense that he has raised. The question that arises for consideration of this Court is;

"Whether the defence is a legal and valid defence in law?"

Section 125 of Cr.P.C. enjoins a duty on a person having sufficient means to maintain his minor children, be they legitimate or illegitimate, and in the event of a person of means failing to maintain his minor children then power is vested in the jurisdictional Court to redress the issue by awarding maintenance. As stated above, there is no dispute that he is gainfully employed and that there is no denial with regard to drawing of a handsome salary. The petitioner herein has not made any effort to place on record as to what is the actual salary he is drawing. Being the custodian of salary slip the burden was on the petitioner herein to demonstrate as to what his salary was, but he has miserably failed to discharge the same. It is an admitted fact that the natural guardian of the respondents herein i.e. their mother is gainfully employed. The employment of the natural guardian is not a defence that is permitted under the provision or scope of Section 125 of Cr.P.C. The provision, unambiguously states that, if any person having sufficient means neglects or refuses to maintain then such person can be bound over by the directions of the jurisdictional Court to maintain the said person and the income of the mother is not a defence provided under the Section. That apart it is also the duty of the petitioner as a father and he cannot be permitted to abdicate his duty towards the minor children. The petitioner is not only entitled to shower his children with love and affection but also to maintain them as dutiful father. More so, in the case of the petitioner who is serving in the armed forces. It is rather perplexing to see that the person who is a guardian of the borders of the nation is neglecting his very own children. It is hoped that wiser counsel would prevail upon the petitioner herein and he would volunteer to extend the scope of his duty not only to the borders of the countries but also to the members of his family. Viewed from any angle this Court does not perceive any merit in the contentions on behalf of the petitioner herein.

Accordingly, petition is rejected.