P.N. Bakshi, J.
1. An application was filed by Smt. Sheel Kumari claiming maintenance from her husband Nanoo Mai Saxena on the ground that he had treated her with cruelty and had failed to maintain her. These allegations were denied by the husband. The trial court rejected the application of Smt. Sheel Kumari but awarded a maintenance allowance of Rs. 50 for her infant child. Aggrieved thereby a revision was filed before the Sessions Judge, Nainital, which has been dismissed on 2nd August, 1976. Hence this revision.
2. I have heard the learned Counsel for the applicant and have also perused the impugned orders. It is argued by the learned Counsel that Smt, Sheel Kumari has not claimed any maintenance for her child and therefore, the Magistrate was not justified in allowing the same. He has also urged that so far a? Sheel Kumari herself is concerned, the Magistrate has found that the allegations of cruelty and neglect have not been found true. In these circumstances, ha submits that no maintenance allowance should have been awarded at all even for the child who was living with her.
3. I have carefully perused the application, filed on behalf of Smt. Sheel Kumari particularly para 4 and the relief sought in the application. She has made a specific mention in this paragraph that a child has been born to her while she was residing at her parents' place on 9-10-1974. The fact that Nanoo Mai Saxena is the father of the child is not denied in the written statement As a matter of fact, the allegation is that the husband had also partly borne his expenses at child's birth. Therefore, factually the position is clear that the minor child who is living with the mother now is the child of Nanoo Mai Saxena. On these pleadings, I am of the opinion that the claim of the child to maintenance cannot be repelled on the ground that no specific relief has been sought by Smt. Sheel Kumari in her application under Section 488, Cr.P.C. A similar view has been expressed by the Jammu and Kashmir High Court in Mst. Biro v. Behari Lai AIR 1958 J&K; 47: 1958 Cri LJ 1481:
Where it is stated by the wife in her application that she has a son and a daughter by the non-applicant living and that is admitted on all sides the necessary facts which would entitle the children to maintenance have been pleaded and proved and, therefore, there is no ground for saying that as the mother has not claimed any maintenance for the children no order for their maintenance should be passed.
4. From a comparison under Section 488, Cr.P.C. (old) as well as under Section 125, Cr.P.C. (new), I find that the right of the wife or the child to be maintained by the husband are each independent rights. One is not correlated to the other. The Code of Criminal Procedure 1973 has merely added some more categories of claimants to maintenance but as far as the liability of the father to maintain his child is concerned, there is no distinction. After considering the entire case law I have already held in Criminal Revision No. 1623 of 1977 (All) (Smt. Kaiser Jahan Begum v. Rijvan Ullah Khan) that 'right of child to claim maintenance allowance from their father is independent of the mother's right to maintenance'. This, right of the child, however, is circumscribed only by two limitations under Section 488, Cr.P.C. The first limitation is that the father must neglect or refuse to maintain the child and the second limitation is that the child must be unable to maintain itself. Counsel for the applicant has cited a number of cases of various courts in support of the proposition that maintenance allowance can only be granted to the children, if the father neglects or refuses to maintain the child. He has relied upon AIR 1925 Bom 258 : 26 Cri Lj 991, In re Mahadev Laxman Satardeker AIR 1927 Lah 430 (1) : 28 Cri LJ 345, Khajan Chand v. The Crown AIR 1941 Patna 444 : 42 Cri LJ 347 Prasad Gareri v. Mt. Kesari.
5. The proposition urged by the learned Counsel cannot be disputed. Before maintenance allowance is awarded to a child, the court must hold that the father has neglected or refused to maintain him but this in every case would be a question of fact deducible from the circumstances and the evidence on the record. It is true that in the instant case the father has alleged that ho had partly borne the expenses at the birth of the child. The child was born on 19th October, 1974. The child was living with her mother Smt. Sheel Kumari. There is nothing on the record to indicate that Nanoo Mai ever sent any maintenance allowance for the support of the child. Being a minor child, it goes without saying that he was unable to maintain himself. Therefore, it was incumbent upon Nanoo Mai Saxena to have remitted an allowance to Smt. Sheel Kumari for the maintenance of the child. In the absence of this evidence, it can safely be inferred that Nanoo Mai Saxena has neglected to maintain his child.
6. The argument that if the child had lived with the father, he would have been maintained is not legally tenable. Further the argument that the mother was not entitled to maintenance and therefore, the child who was living j with such a mother was also not entitled to maintenance, is again not tenable in law. As I have mentioned above, the right of the child to receive maintenance is an independent right and it does not arise out of or flow from the right of his mother to receive maintenance allowance.
7. For the reasons mentioned above, I am of the view that Nanoo Mai is in law bound to maintain his child, who is living with his mother Smt. Sheel Kumari. The maintenance allowance of Rs. 50 per month for the infant child is by no means excessive. This revision application Is accordingly dismissed.