John Beaumont, Kt., C.J.
1. These are two revision applications, one by the husband and the other by the wife in proceedings under Section 488 of the Criminal Procedure Code. The parties are Mahomedans, and the husband and wife do not get on, and are at the moment living apart, and three children of the marriage,--a boy of fifteen and two girls of ten and seven--, are in fact living with the wife. The wife applied for maintenance, and the learned Magistrate held as a fact that the respondent had not refused or neglected to maintain her, and, therefore, he refused to make any order as to maintenance in favour of the wife, and in revision we do not see any ground for differing from the learned Magistrate on that question.
2. The learned Magistrate, however, made an order on the respondent (or payment of maintenance to the three children, and the father applies to us to set aside that order. The learned Magistrate has made a report to the Court under Section 441 of the Criminal Procedure Code, because he says that questions of this sort frequently arise. The position being that the husband and wife are in fact living apart, and that the children are in fact living with the wife, the husband says:
I am not going to maintain the children whilst they are living with my wife. They ought to live with me, and if they come and live with me or with somebody of whom I approve, I will maintain them.
The learned Magistrate raises the question whether in those circumstances the Court under Section 488 can make an order for maintenance of the children. In my opinion, the Court can make an order under such circumstances. Powers under Section 488 are limited. The object of the section, no doubt, is to avoid vagrancy by providing that a Magistrate may up to a limited extent see that a wife and children are maintained by a husband or father able to maintain them. But I think that the Magistrate must take the facts as he finds them to be. If in fact the children are living with the wife, and if in fact the father is refusing or neglecting to maintain them where they are living, 1 think that the Magistrate has jurisdiction to make an order. If the father's case is that the children ought not to be living with the wife, but ought to be living with him or under his direction, then he must take proper proceedings in a civil Court to get the children removed from the custody of the mother. No doubt, such proceedings may sometimes involve expense, which a father is unable or unwilling to bear, but that cannot deprive the Magistrate of the right to exercise his powers under Section 488. If the civil Court makes an order under which the children cease to reside with the mother, and if the father is then willing to provide for their maintenance, he can, of course, apply to the Magistrate under Section 489 to modify his previous order. But, in my opinion, as long as the children are in fact residing with the wife, and the husband is in fact declining to maintain them, the Magistrate can make 'an order for their maintenance under Section 488.
3. We are, therefore, not prepared to differ from the order which the learned Magistrate made.