Hafiz Mohd.Noorullah vs Nazir Ahmad (Minor) through Nikhat Parveen

Kamleshwar Nath, J.—Criminal Misc. Case No. 379 of 1987 is a petition under Section 482 of the Code of Criminal Procedure which has been directed to be connected with Criminal Appeal No. 289 of 1987, hence the 2 cases are being decided by this common judgment.

The petitionerappellant was married to Smt. Nighat Parveen on 19111978. They be got a son on 16121979. According to Smt. Nighat Parveen, his name is Nazir Ahmad, the opposite partyrespondent; according to the petitionerappellant, the name of his son is Azizullah and not Nazir Ahmad.

From 18121980 Nighat Parveen along with her son started living at her parents'' house. She complained that the petitionerappellant had beaten and had turned her out of the house and therefore she went to her parents'' house and was not being maintained by the petitionerappellant. She therefore applied to the concerned Magistrate on 511981 for maintenance for herself and for the oppositepartyrespondent under Section 125, Cr. P. C.

The motion was opposed by the petitionerappellant who said, inter alia, that Smt. Nighat Parveen had left his house along with the child of her own accord and without his meeting any cruelty to her and that his son is not Nazir Ahmad but Azizullah and therefore Nighat Parveen was not entitled to maintenance either for herself or for the oppositepartyrespondent.

The trial court did not accept the theory that the lady had been beaten and turned out of the house. He further found that the lady was making her own earning to the tune of Rs. 600 or 65u per month and therefore she was capable of maintaining herself and consequently was not entitled to any maintenance for herself.

He however, held that the opposity party Nazir Ahmad is the petitioner appellant''s son although he may be called by the name of Azizullah by the petitionerappellant. He therefore chose to describe the oppositeparty respondent as Nazir Ahmad alias Azizullah. The trial court further held that in any case it was the responsibility of the petitionerappellant to maintain his son and having regard to his own admission that he was earning a monthly salary of Rs. 150 as a servant and had a house which was on rent, held that the petitionerappellant must pay Rs. 100 per month to Nighat Parveen as maintenance for oppositeparty respondent with effect from the date of the application, i. e., 511981.

Against this decision the petitioner, appellant filed Criminal Revision No. 210 of 1983 which was dismissed by the learned Additional Judge on 571984 with the observation that there was do incorrectness in the findings recorded by the trial court on all the material points which included the question whether the petitionerappellant cared to maintain the oppositepartyrespondent.

On 1071987 i. e., more than 3 years after the decision of the revisional court, this petition under Section 482, Cr. P. C. was filed in this court stating that his son born from Smt. Nighat Parveen was Azizullah who was being detained by the lady without his consent or knowledge. He stated that he had sent money six times by money orders to Smt. Nighat Parveen to meet the expenses, but Nighat Parveen returned all the money orders.

The point urged by the learned counsel for the appellant in this case is that the petitionerappellant never refused to maintain his son, nor neglected to do so within the meaning of Section 125 of the Code of Criminal Procedure and therefore the order for payment of maintenance is illegal. The contention of the learned counsel for the opposite party respondent is that Smt. Nighat Parveen never refused or returned any of the money orders sent by the appellant as the trial court had noticed, that the petitionerappellant did not maintain the oppositepartyrespondent so much so that even now he has been insisting that the opposite party respondent Nazir Ahmad is not his son and that it is Azizullah who is his son. It is also pointed out that while the order in revision passed on 571984 became final long ago, the petitionerappellant filed this petition under Section 482, Cr. P. C. after 3 years and therefore is not entitled to the discretion of this court.

The learned counsel for the petitioner says that Smt. Nighat Parveen had been wrongfully detaining his son and that now the son is more than 7 years of age and yet the petitionerappellant has not even been able to see the face of his son which is very unfair to him. The learned counsel for the oppositeparty respondent says that in the matter of the custody of Nazir Ahmad. The proceedings under the Guardian and Wards Act are already pending before the family Court which will take their course.

We have heard the learned counsel for the parties at length. We do notice that the trial court did not record a specific and clear finding that the petitionerappellant refused or neglected to maintain the oppositeparty respondent, but it is clear that the finding of the trial court was considered by the Revisional Court to imply a decision that the petitionerappellant did not care to maintain the oppositeparty respondent and went on to say that there was no incorrectness in the findings of the trial court in that regard. As already mentioned, the petitionerappellant kept quite for further 3 years on those findings and approach this court under Section 482, Cr. P. C. after 3 years. We do not propose to enter into the question presently whether or not the petitioner under Section 482, Cr. P. C. should have been filed with in the period provided for by Article 137 of the Indian Limitation Act; but we are clearly of the opinion that having regard to the circumstances of the case and the conduct of the petitionerappellant we should not interfere with the findings recorded by the 2 courts below which have became final by lapse of time and exercise our inherent discretionary power under Section 482 of the Code of Criminal Procedure. Since the petitionerappellant has always been insisting upon the controversy regarding the nomenclature of the child for all the years, it is not at all unlikely that he may not have cared to maintain the child on the pretext of a difference in the name of the child ; we are not inclined on a consideration of all the matters to exercise discretion in favour of the petitionerappellant.

The appeal is directed against an order, dated 3131987 passed by the Family Court directing that the warrant of arrest of the petitionerappellant be issued in the process of execution of the order of maintenance in favour of the oppositeparty respondent. The argument of the learned counsel for the appellant is that in terms of the provisions of Section 125(3) of the Code of Criminal Procedure, the process of a warrant of arrest can be issued only after the process of recovery by attachment of property is exhausted and there is an outstanding amount even thereafter. The learned counsel for the respondent refers to a decision of this Court in Criminal Revision No. 416 of 1984 between these very parties (Hafiz Mohammad Noorullah v. Nazir Ahmad), against an order under Section 125, Cr. P. C. calling upon the petitionerappellant to deposite the amount of maintenance and in case of default to be confined to jail. It is not necessary to examine the point raised any longer because, atleast so for as the present parties are concerned, the matter is concluded by the following decision of this court rendered on 16101986 :

"Further it has been argued that the amount should be recovered by a warrant of attachment and if it could not be realised only then arrest should have been ordered. But the provision contained in Section 125(3), Cr. P. C. shows that both of the procedure can be adopted simultaneously. It says that it can be realised by attachment of property and the Magistrate may also sentence the person concerned. So the revision has no force and it is accordingly dismissed."

There is no question of taking a different view in this case. The appeal therefore should fail.

In the result the Criminal Misc. Case No. 379 of 1987 as well as Criminal Appeal No. 289 of 1987 are dismissed.

Appeal and Petition both dismissed.