M.B. Sharma, J.
1. This is a husband's revision arising out of the proceedings under Section 488 of the Code of Criminal Procedure, 1898 which corresponds to Section 125 of the new Code, The learned Sessions Judge, while accepting the revision of the non-petitioner (wife) has ordered a maintenance of Rs 100/-per month to Smt. Mohini and has further awarded a maintenance of Rs 50/-per month to each of the two minor daughters. The learned Magistrate had dismissed the application of the non-petitioner.
2. Some facts are no longer in dispute and they arc these: Smt. Mohini, the non-petitioner, is the married wife of Joraram, the petitioner and out of the wedlock two daughters were horn and each of them is a minor and is residing with Smt Mohini. At the time when the application under Sections 488 CrPC, 1898 was filed on May 22, 1973 by the non-petitioner, the two daughters were aged 8 years and 11 months respectively. As per the case of the non-petitioner she was living with her parents since Smt. year 2029 and the petitioner having sufficient means to maintain her, had refused her or neglected to maintain her and her two minor children. In the application, all that has been mentioned was that the petitioner was having 70 big has of agricultural land and also a share in a well. It was neither mentioned as to what was the monthly or annual pursuit. According to the non-petitioner the petitioner treated her with cruelty and turned her out of the house and as such, she was compelled to live with her parents. In reply to the application, the petitioner came out with a case that the non-petitioner is an unchaste lady and so far the younger minor daughter is concerned, she was not conceived by him and was not his daughter. He did not come out with an offer to maintain the non-petitioner on condition of her living with him. After the evidence for the parties were recorded, the learned Magistrate dismissed the application and all that need to stated here is that the approach of the learned Magistrate was not correct. The learned Sessions Judge, reversing the order of the learned Magistrate, awarded the a mint of maintenance from the date of the order of the Magistrate that is, November 8, 1976 at the rate already stated earlier.
3. The first contention of the learned advocate for the petitioner is that the petitioner offered to maintain his wife on the condition that she started living with him and, therefore, no maintenance could have been awarded to her. It may be stated here that it does not appear from the record that any bonafide offer was made by the petitioner to maintain the non-petitioner, Even in the reply the petitioner did not come out with the offer to maintain his wife on her living with him. But the petitioner has clearly mentioned that she is an unchaste lady and even went to the extent that the younger minor girl who is alleged to be 11 months on the date of the application, was not born from him, and was as such an illegitimate child. This amounts to mental cruelty. Not only this, the petitioner levelled this charge even in his statement. In his statement, the petitioner as NAW 3 only stated that he is willing to bring back Mohini. It can hardly be said to be an offer to maintain the wife on the condition that she lives with him. That apart, under Sub-Section (3) of Sections 438, CrPQ (1898), all that is required of the Magistrate is that if the husband offers to maintain his wife on condition of her living with him, the Magistrate may consider any grounds of refusal stated by the wife and inspite of the offer by the husband, may still award maintenance to her. To my mind, if the offer of the husband to maintain the wife does not appear to be bonafide, the court can and should award the maintenance to the wife is the wife is entitled for the same notwithstanding the offer of the husband to maintain her on the condition that she starts living with him In the instant case, the case of the non-petitioner was that she was treated cruelly by her husband in as much as she was beaten by the husband and his mother. The petitioner himself has levelled a charge which he has been unable to substantiate and that amounts mental cruelry. Therefore, even if a stray line in the statement of the petitioner that he is willing to keep Smt. Mohini with him be treated to be an offer as required under Sub-Section (7) of Section 488 GrPG (1898), to my mind, the maintenance cannot be refused to the wife In the facts and circumstances of the case.
4. So far as the two minor children are concerned, it may be stated that the minor children have no independent Volition. They are living with their mother. It is the duty of the father to maintain the minor children if the father has means to maintain and if he fails to maintain them, the minors are entitled for maintenance. If he wants the custody of the minors to which he may be entitled in law, he must take proper steps, but so long as the custody of the minors is with the mother, the mother is entitled to claim maiatenance for that.
5. It may be stated here that the submission of the learned advocate for the petitioner that the learned Sessions Judge should have only ordered payment of maintenance amount with effect from November 5, 1979, the date he decided the revision has no substance. A court of revision can order the payment of maintenance allowance from the date from which the Magistrate could have ordered its payment. Under Section 488 2) GrPC (1898), the maintenance allowance could be made payable from the date of the order or from the date of the application for maintenance it so ordered by the court. 'The date of the Order' means, the date of the order of the Magistrate who has jurisdiction in the matter. It will be profiable here to refer to Shahulameedu V. Subsida Beevi (1970 KLT 4) wherein, v. R. Krishna Iyer as his Lordship then was, held that if the quantum of maintenance is enhanced by the High Court, then the rate awarded should prevail from the date of the order of the Magistrate. In that case, an argument was advanced that tae rate awarded by the District Magistrate should prevail till that was reviewed by the High Court and the enhanced rates should be admitted only from the date of the High Court's order. It was held that this argument is too fallacious to be considered. Therefore, the learned Sessions Judge, while disposing of the revision, could have ordered that the amount shall be payable from the date of the order of the learned Magistrate. There appears to be no illegality if the 1earned Sessions Judge has done so.
6. The last submission is that there was no material on record to arrive at a conclusion as to what was the monthly or annual income of the petitioner from his agricultural pursuit and in the absence of it, the fixation of the maintenance allowance at the rate of Rs. 200/ per month, as stated earlier, is excessive. No doubt, is appears that none of the parties was conscious that it is their duty to prove as to what was the monthly or annual income of the husband as only on it the quantum of maintenance should have been fixed. The non-petitionter in her statement has stated that the yearly income of the petitioner was about Rs 10,000/-. This answer was given in cross-examination and its credit should be given to the learned advocate for the petitioner, who cross examined the non-petitioner. No at empt was made to rebut it in the evidence by the petitioner. But only on a stray line in the cross-examination without any facts as to what was the gross income and what was the net income from agricultural operations. a finding cannot be recorded that the annual income of the petitioner was Rs 10,000/ . What shall be the income from agricultural land will depend en the nature of the land whether it is irrigated or 'barana' where it is situated. There is no material on record to show as to what is she the per bigha income of the agricultural land in or near about the place where the land in dispute is situated. Learned advocate for the petitioner cannot dispute that an income of Rs.100/- per bigha is likely to accsue from agricultural operations even in case of the land of the present nature. Taking that as such, it may be assumed, for the present purposes, that the annual income of the petitioner is Rs. 7,000/- from the agricultural operations as it is not disputed that the petitioner is having 70 bighas of land.
7. The question therefore arises as to what quantum of maintenance should be fixed taking the annual income of the petitioner as Rs. 7,000/- It has also to be seen as to whether the quantum of maintenance fixed by the learned Sessions Judge calls for any interference. Taking the income of the petitioner as Rs. 7,000/-, the monthly income would be about Rs. 575/- per monthto the petitioner has only himself and his mother to maintain. To my mind, taking all facts into consideration, the amount of maintenance fixed by the learned Sessions Judge appears to be excessive, and a sum of Rs. 75/- per month to the petitioner and maintenance @ Rs. 40/- per month each to the two minor daughters shall meet the ends of justice.
8. In the result, the revision partly succeeds. While the order of the learned Sessions Judge awarding maintenance from the date of the order of the learned Magistrate, that is, Navember 8,1976 is maintained, it is modified to the extent that the non-petitioner shall be entitled to maintenance-Rs 75/- per month and two minor children shall be entitled to maintenance at the rate-Rs. 40/- per month each. It appears to be just that the arrears should be ordered to be paid in instalments. Therefore, it is directed that along with the monthly maintenance amounts, with effect from lst of September, 1980, the petitioner shall also pay the arrears in the monthly instament of Rs. 100/-.