Kumari P. Janaki Amma, J.
1. The first petitioner married the respondent and the second petitioner is the son born out of the wedlock. The petitioners were awarded maintenance in M.C. 5 of 1960 by the Sub-Divisional Magistrate, Chengannur, the second petitioner being allowed at the rate of Rs. 5 per mensem. The marriage between the first petitioner and the respondent was dissolved with effect from 25-3-1965. Thereafter the respondent filed O. P. 6 of 1966 before the District Court, Mavelikara for the custody of the second petitioner. The matter was compromised and the first petitioner agreed that the respondent be the guardian of the second petitioner and that the custody of the second petitioner be with the respondent on the assumption that such an arrangement would be to the benefit of the minor. The present revision petition arises out of a motion by the petitioners before the Sub-Divisional Magistrate, Chengannur under Section 489, Cr. P. C, for enhanced maintenance to the second petitioner. The case of the petitioners is that though after the compromise in O. P. 6 of 1966, the second petitioner was taken to the respondent, he was sent back after 2 days. For about a year, the respondent used to give him the noon meals. Thereafter, the respondent asked his son not to go over to his house. He did not take any interest in the maintenance of the child, .During the four years preceding the petition, the second petitioner was living with the first petitioner. On the date of the petition, he was studying in the 8th standard. The petitioners claimed maintenance at Rs. 75 per mensem. The respondent in his counter challenged the right of the first petitioner to act as the guardian of the second petitioner. He also denied that the second petitioner has been residing with the first petitioner and claimed that he has been maintaining the second petitioner. The second petitioner was being allowed by him to sleep with first petitioner, his mother during night. The respondent disowned his liability to pay anything by way of maintenance. The learned Sub-Divisional Magistrate dismissed the claim for maintenance on the ground that the parties were bound by the compromise in O. P. 6 of 1966, The Court did not enter a formal finding on the question as to whether there was neglect on the part of the respondent to maintain the second petitioner. According to the court, before claiming enhanced maintenance, the first petitioner should move the Additional District Court, Mavelikara to have the respondent removed from guardianship and to get custody of the second petitioner.
2. The point for decision is whether the learned Sub-Divisional Magistrate is right in holding that the petition for enhanced maintenance is not maintainable, in view of the compromise in O. P. 6 of 1966.
3. It is well recognised that the object of Section 488, Cr.P.C. is to prevent vagrancy on the part of women and children and to provide an efficacious method of enforcing payment of maintenance to them by persons who are bound to look after them. It is a summary remedy available to uncared for wives and children. An order passed under Section 488, Cr.P.C. will not stand in the way of the Civil Court in deciding questions relating to guardianship, custody or maintenance.
4. In the instant case, there is no doubt that the terms of the compromise in O. P. 6 of 1966 are binding on the parties. But the second petitioner would say as P.W. 2 that he lived with his father for only one day, that, thereafter, he was sent away and that ever since he has been living with his mother. Assuming that his case is true, the question is whether the respondent having refused to respect the terms of the compromise can use it as a shield when a claim is made by the first petitioner acting as guardian for the maintenance of the second petitioner.
5. The relevant provision dealing with the matter is contained in Section 489, Cr. P, C, which runs as follows :
489 (1). On proof of a change in the circumstances of any person receiving under Section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit: provided that if he increases the allowance the monthly rate of five hundred rupees in the whole be not exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
It is clear from Sub-section (1) that the Magistrate can make alterations in the rate of maintenance depending upon the change in circumstances. Also under subsection (2), the Magistrate is competent to take into account the decision of a competent civil court and can cancel or vary the order. Going by the language of Sub-section (2), a variation or cancellation of an order passed under Section 488, Cr. P. C, on the basis of a decision by a competent civil court can be effected only by the Magistrate who passed the order. Decided cases lay down that the production of a decree of a civil court by itself is not a ground for disallowing maintenance. What the Magistrate has to do is to consider the decree of the Civil Court along with other circumstances and decide whether the order for maintenance passed by him originally requires cancellation or variation. If the Magistrate in a particular case is satisfied that in spite of the decision of the Civil Court, a father has been neglecting to maintain his child, he need not disallow maintenance to the child. A father may manage to get custody of his child just to circumvent an order for maintenance and thereafter neglect to look after the child. In such cases, it is open to the Magistrate to direct the father to pay maintenance to the child and decline to act upon the decree of the civil court if any.
6. It is argued on behalf of the respondent that judicial propriety requires that the Criminal Court should respect the order regarding guardianship and custody of the minor passed by the Civil Court and that if the first petitioner has any case that the respondent has not been maintaining the child, the proper course is to move the Civil Court and get herself appointed as guardian, in other words, the contention is that so long as the respondent continues to be the guardian and entitled to custody of the second petitioner, the first petitioner has no right to claim maintenance on his behalf. Reliance has been placed on the decision in Nur Muhammad v. Ayesha Bibi (1905) ILR 27 All 483 to support the position that the decree of the Civil Court has superseded the order for maintenance passed by the Magistrate. But that case itself arose in connection with an application filed by the husband under Section 489 (2), Cr.P.C. for cancellation of a prior order for maintenance. In other words, the decision is not an authority for the proposition that a decree or order of a civil court ipso facto works as variation or cancellation of an order for maintenance passed under Section 488. Cr.P.C. A party who wants any alternation in the order for maintenance on the basis of a decision by a civil court has to move the Criminal Court under Section 489 (2), Cr.P.C. That such a motion is necessary is made clear in the decision in Budhni v. Dabal (1905) ILR 27 All 11.
7. The case of Saraswathi Ammal v. Harirama Serva, 1971 Ker LT 521 is an authority to show that existence of a decree for maintenance by a civil court is no bar for the entertainment of an application for maintenance under Section Cr.P.C. Going by that decision, if the Magistrate thinks that in spite of the decree of the civil court a person continues to neglect and refuses to maintain his wife or child, a petition under Section 488, Cr.P.C. will lie.
8. That the respondent is the person entitled to custody of the child under the compromise in O. P. 6 of 1966, is also no answer to the claim for maintenance in this case because in awarding maintenance to a child in proceedings under Section 488, Cr.P.C. the Criminal Court need take into account only the fact of its custody and not the propriety of that custody. (See Mariyam v. Ouseph, 1960 Ker LT 1356).
9. The finding of the Sub-Divisional Magistrate that the petition for enhanced maintenance is barred in view of the compromise in O. P. 6 of 1966 is, therefore, unsustainable. The first petitioner was within her rights in approaching the Criminal Court for relief on the basis that in spite of the compromise in O. P. 6 of 1966, the respondent was neglecting to maintain the child and that under altered circumstances, the rate originally allowed was insufficient to meet the requirements of the child. The court should have considered the evidence adduced by the parties and should have decided the claim on the merits.
10. The order of the Magistrate is, therefore, set aside. The Magistrate is directed to restore the application to file and dispose it according to law and in the light of the observations made above. The revision petition is allowed.