1. Anwarbi's application under Section 488, Criminal P.C. for maintenance for herself and her daughter Mahmoodabi, 7 years, against Rahmatsab was dismissed by the First Class Magistrate, Burhanpur, on the grounds that she failed to prove that he had expelled her from his house, that she refused to return to him although he was willing to keep her and that she was not prepared to go back to him. Anwarbi then went up in revision; and the Additional Sess. Judge, Nimar, has reported the case under Section 433, Criminal P.C. with a recommendation that the dismissal of the claim for maintenance was, so far as it relates to the daughter, wrong. Anwarbi has filed an application for revision against the order refusing maintenance to her.
2. Anwarbi's suit for dissolution of marriage viz., civil suit No. 43-A of 1946, was dismissed by the 1st Civil Judge, Class II, Burhanpur; and her appeal was also unsuccessful. She then filed a second appeal in this Court. The application under Section 488, Criminal P.C. was made in September 1950 and in 1945-46 Rahmatsab had married again.
3. The view of the learned Additional Sessions Judge, Nimar, 'vis-a-vis' Mahmoodabi's claim for maintenance is undoubtedly correct. In - San Pe Mg, v. Ma Lai Mai 10 Rang 486, Page C.J. held that a father is bound by law to maintain his child even though the child is living with its mother who refuses to return to her husband under a decree for restitution of conjugal rights, and that it is open to the father to apply to the Court for the custody of his child. In - Kuppala Krishtappa v. Premaleelamani. AIR 1942 Mad 705, it was held that as long as the child is with the mother, the mother must be given sufficient to maintain it; and if the father has a right to the custody of the child, he can at any time institute proceedings for that purpose. In the present case, Anwarbi is the legal guardian of Mahmoodabi under Muhammadan Law, as Mahmoodabi has not yet attained the age of puberty. Anwarbi may in certain circumstances be disqualified from being her daughter's guardian; but, if she is so disqualified, it is open to Rahmatsab to move a competent Court to appoint him or some one else as Mahmoodabi's guardian. Until he does so, Anwarbi is the natural guardian and there is nothing in the provisions of Section 488. Criminal P.C. to show that he is entitled to demand the custody of Mahmoodabi from her lawful guardian as a condition precedent to maintaining her.
4. That too was the view of a Division Bench in - Allah Rakhi v. Karam lahi 14 Lah 770, a case in which the mother had been divorced by the father. Although in the case before me Anwarbi had left Rahamatsab's house in 1942, he had never thereafter sent her anything either for her own maintenance or for the maintenance of his daughter Mahmoodabi. It follows that he had neglected to maintain kthat child. The reference of the learned Additional Sessions Judge recommending the setting aside of the dismissal of the claim for maintenance in so far as it related to Mahmoodabi is, therefore, accepted; and so also is the recommendation for a direction to the magisterial Court to decide, after evidence has been taken, the quantum of maintenance which should be awarded to Mahmoodabi.
5. It seems to me also that the Courts below rightly held that Anwarbi herself was not entitled to maintenance. She had, it appears, voluntarily left Rahamatsab's house, although she had not been subjected to maltreatment. She was not prepared to return to him, although, he was prepared to maintain her. She had, as indicated, left him several years before he re-married; and when the application was argued before the learned Additional Sessions Judge, the contention raised was that Anwarbi was entitled to maintenance on the sole ground that her husband had married another wife. This contention was based on the fact that the following amendment was made in Section 488(3) in 1949 by Section 2 of the Code of Criminal Procedure (Amendment) Act, 1949 (Act IX of 1949):
If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.
6. The mere fact that a husband has married again does not entitle the wife to maintenance, although, as shown it has to be regarded as just ground for her refusal to live with him. The refusal or neglect to maintain constitutes the basis for the exercise of jurisdiction by a Court under Section 488, Criminal P.C. and in this case, Anwarbi had undoubtedly failed to prove such refusal or neglect on her husband's part. In short, she is justified in not living with him since his remarriage; but in virtue of her failure to show that he had neglected or refused to maintain her, she was not entitled to separate maintenance.
7. Anwarbi's application is accordingly dismissed and the reference made by the learned Additional Sessions Judge, Nimar, is, for the reasons given, accepted.