The court's discretion under Section 482, Cr. P. C., should not be exercised in favor of a petitioner who has shown a lack of diligence in pursuing his legal remedies and whose conduct suggests that he may have intentionally avoided maintaining his child.

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.

2. The petitioner-appellant was married to Smt. Nighat Parveen on 19-11-1978. They be got a son on 16- 12-1979. According to Smt. Nighat Parveen, his name is Nazir Ahmad, the opposite party-respondent; according to the petitioner-appellant, the name of his son is Azizullah and not Nazir Ahmad.

3. From 18-12-1980 Nighat Parveen along with her son started living at her parents house. She complained that the petitioner-appellant 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 petitioner-appellant. She there fore applied to the concerned Magistrate on 5-1-1981 for maintenance for her self and for the opposite-party-respondent under Section 125, Cr. P. C. 4. The motion was opposed by the petitioner-appellant 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 opposite-party-respondent.

5. 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 main tenance for herself.

6. He however, held that the opposity party Nazir Ahmad is the peti tioner appellants son although he may be called by the name of Azizullah by the petitioner-appellant. He therefore chose to describe the opposite-party respondent as Nazir Ahmad alias Azizullah. The trial court further held that in any case it was the responsibility of the petitioner-appellant 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 petitioner-appellant must pay Rs. 100 per month to Nighat Parveen as maintenance for opposite-party respondent with effect from the date of the application, i. e. , 5-1-1981.

7. Against this decision the petitioner, appellant filed Criminal Revision No. 210 of 1983 which was dismissed by the learned Additional Judge on 5-7-1984 with the observation that there was do incorrectness in the findings recorded by the trial court on all the material points which included the ques tion whether the petitioner-appellant cared to maintain the opposite-party-respondent.

8. On 10-7-1987 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.

9. The point urged by the learned counsel for the appellant in this case is that the petitioner-appellant 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 petitioner-appellant did not maintain the opposite-party-respondent 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 i

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