(1) The parties to these proceedings namely Abnash Chander and Shrimati Sushila Devi, were married about 13 years back, in the course of which Shrimati Sushila Devi bore five sons and two daughters. On 28th September 1959 she applied to the Sub-Divisional Magistrate at Fazilka for maintenance under section 488 of the Cri. P. C. At that time she was carrying another child in her womb. She complained that for some time her husband had been indulging in drinking and gambling, and since she had been objecting to his bad ways of life her husband started maltreating her, and about five years back turned her out of the house. She then went away to live with her parents at Fazilka, but through the intervention of respectable persons, reconciliation was effected, and she returned to Abnash Chander. Once again she was turned out and went away to her parents. In order to equip herself for earning her livelihood she joined a school in the ninth class. Again efforts were made to persuade her husband Abnash Chander to take her back and maintain her, but Abnash Chander did not even listen to the Panchayat which consisted of Milkhi Ram Darbar Chand, Murari Lal, Jagan Nath and Munshi Ram, Shrimati Sushila Devi claimed maintenance for herself and her minor children who had been living with her.
(2) In contesting the claim for maintenance, Abnash Chander denied the allegations of beating and desertion and made the counter allegation that Shrimati Sushila Devi had herself gone away to her parents and had been keeping away at their instance, so that she should maintain them by working as a teacher at Fazilka. He offered to maintain those of the children who were living with Sushila Devi, provided they lived with him and also stated that after Sushila Devi had been delivered of a child he would be prepared to take her as well to his house.
The learned Magistrate after going through the evidence found that Abnash Chander had refused to maintain his wife and the two minor children who had been living with her. He, accordingly, awarded maintenance to Shrimati Sushila Devi at Rs. 60/- per mensem for herself and Rs. 10/- for each child. Though a revision was preferred to the Court of Session by Abnash Chander, the learned Sessions Judge, Ferozepur, found no merit in it and refused to interfere. Two cross petitions have been preferred to this Court for revision of the order of the Magistrate awarding maintenance to Shrimati Sushila Devi and her two minor children. While in criminal revision No. 855 of 1961 Shrimati Sushila Devi prays for the enhancement of the amount, in criminal revision No. 480 of 1961, her husband Abnash Chander prays for quashing the order passed by the Magistrate.
(3) The finding of the trail Magistrate that Abnash Chander had been refusing to maintain his wife and the minor children who were in her custody was affirmed by the learned Sessions Judge and is no longer in dispute before me. Shri Sachar who appears for Abnash Chander has, however, assailed the order of the Magistrate on the grounds, (a) that the offer made by Abnash Chander to take back his wife had been put to her and (b) that in any case no order for the maintenance of the minor children who are in the custody of Sushila Devi could be passed as Abnash Chander was their lawful guardian and they must reside with him.
None of these contentions, in my opinion, has any force. So far as the offer made by Abnash Chander to maintain his wife Sushila Devi is concerned, there was no offer worth the name. In the application which Abnash Chander presented before the Magistrate on 16th September 1959, he had specifically stated that though he was willing to take back his children, it would be only after Sushila Devi had been delivered of the child that he would visit Fazilka and take her to Abokhar. It is stated by the learned counsel for Shrimati Sushila Devi that subsequently after a child had been born to Shrimati Sushila Devi, Abnash Chander never offered to take her to his house, nor did he visit Fazilka for the purpose. There is nothing on the record to rebut this statement. In these circumstances, there was no offer which could be put to Shrimati Sushila Devi and there has been no procedural irregularity.
(4) In support of his contention that the father being the natural guardian of the minors cannot be forced to pay further maintenance if the minors are not living with him and are kept out of his custody especially when he has offered to take them back Shri Sachar has relied upon Man Singh v. Mt. Dharmon, 18 Pun Re 1894, and Sultan v. Mahtab Bibi, AIR 1926 Lah 536. The learned counsel for Shrimati Sushila Devi, on the other hand, has cited a number of authorities, including Mazaffaruddin v. Hajira Begum, 1952 Cr LJ 996: (AIR 1952 Hyd 97), Kuppala Krishtappa v. Premaleelamani, AIR 1942 Mad 705 and Muniammal v. Venkataramanachari, AIR 1943 Mad 768.
(5) The various authorities cited by the parties counsel reveal a conflict of judicial opinion on the question whether the minors are entitled to claim maintenance from their father even it they are in the custody of the mother who is living separately the consensus of opinion, however, is in favour of the view that maintenance cannot be refused to minors merely because they are living with their mother or the mother had been refusing to hand them back to the father who may be their natural guardian according to the personal law of the parties. With respect, I prefer to follow the latter view which, in my opinion, is warranted by the provisions of Section 488 of the Code of Criminal Procedure.
(6) Under sub-section (3) of Section 488 of the Code of Criminal Procedure, a wife is entitled to an order of maintenance despite the offer made by her husband to maintain her on the condition of her living with him provided there is just ground for her refusal to live with him. Conversely, if there is no reason for the refusal of the wife to live with her husband she would not be awarded maintenance. This provision does not refer to the children whose statutory right to be maintained by the father is recognized under sub-section (1) of Section 488 of the Code of Criminal Procedure. It however, does not mean that where a child quits the house of the father and refuses to live with him he would be entitled to claim maintenance.
The position of a child who has not attained the age of discretion or who is not of its own free will or volition living away from the father is peculiar. If such a child is kept in custody by the mother and is prevented from returning to the father, it cannot be said that the child is at fault and that its conduct has disentitled it to maintenance. Even if a child prefers to live with the mother due to natural affection or attachment for her, that would not affect the liability of the father to maintain the child. In such circumstances, where the father objects to the custody of the child and asserts his own legal right, the proper course for the father would be to apply for its custody, but so long as the custody of the child remains with the mother, he cannot refuse to pay maintenance for the child irrespective of the fact whether or not the mother has a right to be maintained by him.
This is the view which has been taken in AIR 1942 Mad 705, 1952 Cri LJ 996: (AIR 1952 Hyd 97), and several other decisions of this Court. In State v. Mst. Anwarbi, AIR 1953 Nag 133, it has been held that when the child is in the custody of its mother and the father demands its custody as a condition precedent to his giving maintenance to the child, the father's conduct amounts to neglect or refusal under sub-section (1) of Section 488 of the Code of Criminal Procedure. Akhtari Begum v. Abdul Rashid, AIR 1937 Lah 236, is a case in which the right of a child, four years of age, to be maintained by the father despite the fact that the child was in the custody of the mother, was upheld.
(7) Dinsab Kasimsab v. Mahamad Hussen Dinsab, AIR 1945 Bom 390 and Kochukrishnan Asan v. Rajan, AIR 1954 Tra-Co. 225, support the petitioner's contention that if the father thinks that the child should live with him, his remedy is to take proper proceedings in a civil Court to obtain its custody, and so long the custody remains with the mother, the child will be entitled to maintenance. The question whether the mother or the father was entitled to the custody of the children cannot be decided in a summary manner in proceedings under S. 488 of the Code of Criminal Procedure, and it is for the civil Courts to adjudicate upon the father's claim to custody. The criminal Courts would thus be not justified in refusing maintenance to a child merely because the mother refuses to part with its custody.
(8) In view of the above discussion, I am of the opinion that the other of the Magistrate awarding maintenance to Shrimati Sushila Devi and the minor children who are in her custody is correct. The amount awarded has not been shown to be inadequate and, accordingly, find no justification for its enhancement. In the result, both the criminal revisions petitions Nos. 480 and 855 of 1961 fail and are dismissed.
(9) Order accordingly.