1. This second appeal arises out of a suit filed by the minor plaintiffs Mahamed Hussen and Imam Hussen through their mother and next friend Begumbi to recover from their father Dinsab future maintenance at Rs. 4 each per month, together with arrears of maintenance at the same rate from the dates on which they respectively attained the age of seven. The defendant contended that as soon as the plaintiffs attained the age of seven, he became their legal guardian and as such entitled to their custody, and that, therefore, he was not liable to pay separate maintenance to them. The trial Court upheld his contention and dismissed the suit. But in appeal the learned District Judge held that the father's liability to maintain his sons during their minority was absolute and' irrespective of his right to have them in his custody, that he was bound to provide them with maintenance wherever they were, and that if he wanted their custody, he should take appropriate steps under the Guardians and Wards Act, 1890. He, therefore, decreed the plaintiffs' claim for past and future maintenance until they attained puberty, or were ab1e to earn their livelihood or the defendant lawfully obtained their custody.
2. The facts of the case are not disputed in this Court. The plaintiffs' mother Begumbi was married to the defendant Dinsab and gave birth to plaintiff No. 1 on August 6, 1925. But she did not pull on well with her husband and about June 1927 she left him and went along with plaintiff No. 1 to live with her parents. She was then five months advanced in pregnancy and gave birth to plaintiff No. 2, on October 2, 1927. She did not go back to her husband, but filed suit No. 858 of 1928 to recover from him Rs. 250 for her mahr, Rs. 50 for the expenses of her delivery and Rs. 200 for the maintenance of herself and her two children from January, 1928. She alleged that she had to leave her husband owing to his ill-treatment and the consequent danger to her life if she continued to live in his house. She, however, failed to prove that allegation, and the trial Court gave her a decree for her mahr only. But in appeal it was held that though she was not justified in living away from her husband, and therefore not entitled to claim her own maintenance from him, she was, under the Mahomedan Law, the legal guardian of her two sons until they attained the age of seven and her husband was bound to maintain them. So the defendant was ordered to pay her Rs. 4 for each of her two sons from January, 1928. Accordingly he paid her at that rate until they reached the ages of seven and then stopped payment. Plaintiff No. 1 attained the age of seven on August 6, 1932, and plaintiff No. 2 on October 2, 1934. They, however, continued to remain in the custody of their mother, even after she ceased to be their legal guardian, and on December 3, 1934, the defendant gave her a registered notice, asking her to hand over the custody of his two sons to him, but she paid no heed to his request and filed this suit as their next friend to recover all the arrears of their maintenance since he stopped payment and future maintenance until they attained majority.
3. It is well settled that among the Hanafis mother's hizanat or right of custody of a minor son ends with the completing of his seventh year, so that as soon as he attains that age, his father becomes his legal guardian, and the right to his custody (hizanat) passes from his mother to his father. Irrespective of his right to custody, the responsibility of maintaining his minor children rests primarily) upon the father. He is bound to maintain his sons until they have attained the age of puberty, and his daughters until they are married, so long as he is in a position to do so and the children have no independent means of their own. In other words, so long as the father is not the legal or appointed guardian of his children, and therefore not entitled to their custody, their residence with him is not a condition precedent to his obligation to maintain them : Mahomed Jusab v. Haji AdamI.L.R (1911) Bom. 71 : 14 Bom. L.R. 336. But the position would be different where the father is the guardian and as such entitled to the custody) of his children. In that case he can insist upon their residing with him and refuse to give them separate maintenance, unless it is found that by reason of his cruelty, lunacy, or other adequate reason he is unfit to have the custody of his children. No such ground of the defendant's unfitness is proved in this case, and the defendant has never refused to keep and maintain the minor plaintiffs. He is, therefore, not bound to provide for their separate maintenance.
4. In Muhaidin Tharaganar v. Sainambu Ammal  Mad. 760 Abdur Rahman J. has expressed a different opinion, and observed (p. 764):
5. In a suit for recovery of maintenance, 'the rules of maintenance, so far as the children are concerned, have got really nothing to do with the father's) right of custody. If the father has any right of custody of his children, he is entitled to enforce that right but the fact that he has not done so or that his children are residing elsewhere does not...deprive them of their right to claim or recover maintenance from their father,'
6. This question did not directly arise in that case. The daughter for whom separate maintenance was claimed from the father was an unmarried Mahomedan belonging to the Shafei sect, and under the law governing Shafeis, the mother is entitled to her daughter's custody until she is married. Hence the father had no right to her custody and was bound to give her separate maintenance if she wanted to live separately with her mother. Though the remarks of Abdur Rahman J. regarding the father's obligation to provide for the separate maintenance of his daughter even though he; was entitled to her custody are thus obiter, they are entitled to great weight, coming as they do from a learned Mahomedan Judge. But with great deference, we think that with regard to the father's liability to maintain his children, there is hardly any difference between the Mahomedan Law and the Hindu Law. As pointed out by Abdur Rahman J., a Mahomedan father's duty to maintain his sons until they attain majority and his daughters until they are married is absolute. In Haji Jusab v. Haji Adam, it was contended that the Mahomedan Law as to maintenance was a law of imperfect obligation, imposing a moral and not a legal obligation. But it was held that it was a legal liability which could be enforced in a Court of law. A Hindu father is under a similar imperative obligation to maintain his minor children : see Savitribai v. Laxmibai I.L.R (1878) Bom. 573. But the Hindu Law, unlike the Mahomedan Law, recognizes the father as the natural and legal guardian of his minor children from the time of their birth. Hence unless he refuses to keep his children with himself or is found unfit to do so, he cannot be compelled to give separate maintenance to them. It was so held in Man Singh v, Mussammat Dharmon (1894) P.R. 18 This principle was extended to Mahomedan parties in sardar Muhammad v. Nur Muhammad (1917) P.R.22 and it was held that the father was entitled to decline to maintain his children if they refused to live with him without reasonable cause when he had a right to their custody as their guardian.
7. The maintenance, which the father, whether a Hindu or a Mahomedan, is under an absolute obligation to provide for his minor sons and unmarried daughters, does not necessarily mean a separate allowance in cash or kind, as appears to have been assumed by Abdur Rahman J. in Muhaidin Tharaganar v. Sainambu Ammal. The father's obligation to give such separate maintenance to his children even when he was entitled to their custody was considered by Kania J. in Bayabai v. Esmail Ahmed : (1941)43BOMLR823 . In that case a Mahomedan unmarried girl who had attained, puberty and . was living with her divorced mother, sued her father for separate maintenance. Kania J. observed (p. 825):
In my opinion the Mahomedan Law, like other systems of law, while putting an obligation on the father to maintain his children, gives with it a right to the father to keep the children in his house, unless according to the law governing the parties some other person is the lawful guardian of the person of the child.
8. In that case the daughter had attained majority and had herself brought the suit. Her father could not claim to be her legal guardian as she was no longer a minor. Yet Kania J. thought that if her father offered to keep her in his house and maintain her there, she had no absolute right to separate maintenance. In his opinion, with which we entirely agree, the expression 'absolute right' found in the text books in connection with the daughter's right to maintenance cannot be interpreted as giving to the daughter an unrestricted right to live as and where she liked and imposing an obligation on the father! to provide separate maintenance for her, even though he may be willing to keep her in his house and maintain her. The same rule applies equally to a minor son. When his father is his legal guardian, though he is bound to maintain him, he cannot be required to provide him with separate maintenance, unless it is proved that he is not fit or willing to keep the minor in his custody.
9. We are aware of the divergence of opinion on this point where maintenance is claimed under Section 488 of the Criminal Procedure Code. Sardar Muhammad v. Nur Muhammad, referred to above, was a case under that section and it was observed (p. 85):.there is no reason why he (the father) should now be compelled to pay for his son's maintenance while living separately from him. The friends of the minor can move the proper Court for an order appointing some one, other than Nur Muhammad (the father), guardian of the boy, and if they, succeed, they would then be entitled to claim maintenance from Nur Muhammad on his behalf.
10. This was cited with approval in Mst. Sarfraz Begum v. Miram Bakhsh I.L.R (1927) Lah. 313. But our High Court has taken a different view in Emperor v. Sassoon I.L.R (1925) Bom. 562 : 27 Bom. L.R. 359, Bad Manek, In re I.LR (1928) Bom. 763 : 30 Bom. L.R. 958I, and Ebrahim Mahomed v. Khurshedbai : (1941)43BOMLR515 . In this last case Beaumont C. J. said (p. 517):
The object of the section, no doubt, is to avoid vagrancy by providing that the 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.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, I 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.
11. The same view was taken by the Madras High Court in In re Parathy Valappil Moideen and by the Rangoon High Court in Maung San v. Ma Lai Mai AA.;I.R  Ran. 183.
12. In all these cases the decisions were really based on the construction of Section 488 of the Criminal Procedure Code. The first proviso to Sub-section (3), relating to an offer to maintain, refers only to the wife and not to the child, and Sub-sections (4) and (5) disentitle only the wife 'to receive an allowance from her husband' if she refuses to live with her husband 'without sufficient reason'. Hence a Magistrate from whom a wife seeks an order for maintenance against her husband has power to see if there are sufficient reasons for her living separate from him. The obvious reason why no reference is made to a child in the proviso and in Sub-sections (4) and (5) is, as pointed out in Mi Saw v. S (1910) 11 Cr. L.J. 488, that it cannot be said, as a matter of law, that the child and the father ought to live together in the same way as a husband and wife should, as an incident of matrimony, and the question as to whether the father is or is not fit to have the custody of his child is a matter for the civil and not for the criminal Courts. Hence in a proceeding under Section 488, so far as the maintenance of a child is concerned, the criminal Court is concerned only with the fact of its custody and not the propriety of that custody. But when the matter comes before a civil Court, it has to consider whether the father is not the lawful guardian of the child and whether for any reason he is unfit to have its custody. It cannot be contended that this question is to be decided only in a proceeding under the Guardians and Wards Act, but the right to custody can be a good defence to a claim for the separate maintenance of the child in a civil suit, provided the father has expressed his bona fide willingness to keep and maintain the child. When the custody of a child is wrongfully withheld from its father when he is its legal guardian, it would be unfair to require him to pay for its maintenance and drive him to a separate action for recovering its custody when the question of his right and fitness to have its custody can be decided in the same suit.
13. In Bayabai v. Esmail Ahmed the facts that the plaintiff's mother had been divorced, that thereafter the plaintiff had never been called by her father to live in his house and that he had become a lunatic were held to afford sufficient justification for permitting the plaintiff to stay away from her father's house, and her right under the circumstances to separate maintenance was held established. None of these circumstances exists in the present case. The defendant has not divorced or deserted the plaintiffs' mother, but it appears that she herself wantonly went to live with her parents, as held in her suit No. 858 of 1928. He was regularly paying separate maintenance to the plaintiffs, but stopped payment as soon as they became seven years old, and gave a notice to their mother to send them to him. He is quite capable of looking after the plaintiffs if they stay with him. The only ground of unfitness which the learned District Judge has found in him is that he has married a second wife and as he has to be away during the greater part of the day to attend to his duties in the Railway Workshop, the plaintiffs will have to 'tackle' with their step-mother, who has her own children. There is nothing in the evidence to justify this fear, and it would not be right to presume that the plaintiffs' father will allow them to be neglected or ill-treated by their step-mother. Nothing is alleged against her disposition or character, and it is not right to assume that the plaintiffs are not likely to be happy in their father's house. The burden of proving their right to separate maintenance, when their father who is their legal guardian is willing to keep them with him and maintain them, lies heavily on the' plaintiffs and they have failed to discharge it.
14. The defendant, however, did not express his willingness to take his sons into his custody till he gave the registered notice on December 3, 1934. It is possible that although plaintiff No. 1 attained his age of seven on August 6, 1932, the defendant did not wish to separate the two brothers and waited till plaintiff No. 2 also attained that age on October 2, 1934. Their mother was justified in keeping them with herself as before until the defendant decided to take them away from her, and she had to spend for their maintenance till then. She did not intend to do so gratuitously, and on the analogy of the principle embodied in Section 70 of the Indian Contract Act, the defendant is bound to reimburse her. But her withholding the custody of the children from him after he made a demand was unjustified, and she cannot claim their maintenance after that date.
15. We, therefore, hold that the defendant is liable to pay Rs. 64 for plaintiff No. 1's maintenance for sixteen months and Rs. 8 for plaintiff No. 2's maintenance for two months. It must be made clear that it is open to the plaintiffs' mother or any other well-wisher to take proceedings any time under the Guardians and Wards Act to have the defendant declared unfit to be their guardian and to have any other person appointed as their personal guardian.
16. As the plaintiffs are unrepresented in this Court, we have fully considered all the aspects of the case and have come to the conclusion that the plaintiffs are not entitled to separate maintenance after the defendant gave a notice demanding their custody.
17. We, therefore, set aside the decree of the lower appellate Court and order the defendant to pay to the plaintiffs Rs. 72 and proportionate costs throughout. The rest of the plaintiffs' claim is rejected. In view of the peculiar circumstances of the case, we direct the defendant to bear his own costs throughout. Government shall recover from the plaintiffs such amount of court-fees as they would have paid had they not been allowed to sue and appeal in forma pauperis.