Judgment:
ORDER
Mohd. Yamin, J.
1. This revision is directed against the order of learned Judge, Family Court, Jodhpur dated 13-5-97 by which he ordered the petitioner to pay Rs. 350/- per month to each of his children Rinku and Kirti from the date of application submitted under Section 125, Cr.P.C.
2. I have heard the learned counsel for the petitioner as well as learned counsel for the respondents.
3. Mansha Bai was married to Shyamlal. Out of this wedlock two children were born. It was alleged in the petition that the wife and two minor children were kicked out of the house by the petitioner and he was not maintaining them for last 7 years. They were kicked out without any cause and have been neglected by the petitioner. He has refused to maintain them. The minor children Rinku and Kirti were living with their mother who was living with her mother as her father has already expired. They do not have any source of income and are unable to maintain themselves. The petitioner was a railway employee and was earning Rs. 2300/- per month and has nobody to look after. Therefore, it was submitted that Rs. 500/- be paid as maintenance allowance to each of three. The husband submitted his reply before the learned Judge of the Family Court admitting that Mansha Bai was his wife and two children were born out of the wedlock. He submitted that the wife had gone to her parents house on her own sweet will and despite his best efforts she was not ready and willing to live with the husband. She was maintaining hereself as well as the children. It was further stated that the wife did not want to live with the husband in the joint family and was pressurising that the petitioner should leave his parent's and live in a separate house. The petitioner was not in a position to leave them and wanted to keep all of them joint. He never refused to maintain the wife and children. Many a time he tried to bring them and even panchayat of his community was held for the purpose. But the wife was not willing to live with the husband. Even in the last para of the reply it was submitted that the husband was ready to keep the wife and children with him. He also submitted that the wife was earning Rs. 70/- or 80/- per day as she was a washer woman while the petitioner was getting a salary of Rs. 1500/- being a khalasi in the railway, out of which he has to pay Rs. 350/- as house rent. The learned Judge, Family Court recorded the statements of witnesses of both the sides and then by the impugned order he refused to grant maintenance to the wife but ordered that a sum of Rs. 350/- be paid to each of the children totalling to Rs. 700/- per month from the date of the application. It was against this order that the petitioner has come in revision under Section 19 of the Family Courts Act.
4. Learned counsel for the petitioner submitted that as per the provisions of Section 125, Cr. P.C. there should be a clear cut finding of the trial Court that the petitioner has neglected or refused to maintain the minor children and that they are unable to maintain themselves and unless such a finding is given by the trial Court the children will not be entitled to maintenance from the petitioner who is their father. He has submitted that by mere presumption the Court could not have directed the payment of maintenance allowance to the children. He has also submitted that the petitioner was always willing to keep the children but it is the wife who did not leave them. He also submitted that the learned Judge of the Family Court ordered payment of maintenance from the date of application while this Court in Qamruddin v. Srimati Rashida 1992 (1) WLC (Raj) 305 has held that the amount payable generally should be from the date of order and not from the date of application unless there are reasons to be recorded. Learned counsel for the petitioner submitted that the learned Judge of the Family Court did not give any reason as to why he was allowing maintenance from the date of the application. Therefore, he has prayed that the order of the learned Judge of the Family Court should be set aside.
5. On the other hand learned counsel for the opposite parties has submitted that the petitioner has not been maintaining the children and that the petitioner does not want to keep them and under one pretext or the other avoids to maintain them. He has also submitted that on earlier occasion the wife and children had gone to the petitioner but he ill-treated them and then shunted them out. He has, therefore, submitted that the order of the learned Judge of the Family Court does not require any interference.
6. I have gone through the order of the learned Judge of the Family Court as well as evidence on record. In criminal revision interference is required only when any illegality is committed by the lower Court. From the impugned order I find that the respondents do not have any independent income. They are living with their mother who works as a washer woman. It is on record that they are unable to maintain themselves. But the question is whether the petitioner has neglected them? According to Section 6 of the Hindu Minority and Guardianship Act the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are in case of a boy or an unmarried girl-the father and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Both the children are definitely above the age of 5 years and, therefore, according to the Hindu Minority and Guardinship Act the natural guardian is the father. When the father is the natural guardian he is supposed to maintain the minor children. He is not keeping them with him as it is clear from the evidence, on record for one reason or the other. He had some differences with his wife and the wife had also prayed for maintenance but the Court did not allow her to obtain maintenance from the husband as she was living with her mother on her own accord. But so far as the children are concerned, this cannot be the ground that the children are not ready to live with the father under one pretext or the other. He is the natural guardian and is supposed to maintain them as the children are not able to maintain themselves. When he is the legal guardian and is not keeping them, it means that he has neglected them or refused to maintain them. The father never tried to get the guardianship of the children through the Court and he cannot take the plea that the wife was not allowing him to keep the children. Therefore, the argument that the petitioner is not bound to maintain the children in the circumstances of this case does not appeal to me. There is clear cut finding in the order of the learned Judge of the Family Court that the petitioner was not maintaining the children. They have independent right to ask for the maintenance from the father.
7. The next question is whether the amount of Rs. 350/- for each of the children is excessive in the circumstances of this case Shyamlal examined himself as a witness before the Court below but did not depose a single word about his in-come. According to Section 106 of the Indian Evidence Act the amount of income of the petitioner is a fact which is within his special knowledge and when he himself does not tell about his income, it means that he is hiding the truth, Smt. Manchha Bai has stated in her examination in chief that the income of the petitioner was Rs. 3,000/- per month. A suggestion was given to her in the cross-examination that the petitioner was getting only Rs. 1500/- per month as his salary. The petitioner is a railway employee and the best evidence would be the document from his department. He has withheld such a documentary evidence which he could have obtained from his department and produced before the Court. Therefore, his plea that he was getting a salary of Rs. 1500/- per month will not be accepted. Secondly, even if the income of Rs. 1500/- is accepted, there is no evidence as to how many people he has to feed. The trial Court has granted a sum, of Rs. 350/- to each of the children which is not excessive...
8. So far as the date is concerned, I have considered over the matter. The learned Court below has not given any reason as to why the amount of maintenance was being granted from the date of application. According to Qamruddin v. Srimati Rashida's case (supra) unless there are reasons recorded in the order the amount of maintenance is generally to be paid from the date of the order.
9. In view of above discussion, this revision petition is partly allowed. The order of the learned Judge of the Family Court is modified to the extent that the amount of maintenance of Rs. 350/ - to each of the children shall be payable from the date of the order i.e. dated 13-5-1997.