Alfred Henry Lionel Leach, C.J.
1. The petitioner was married to the respondent in the Nilgiris on the 23rd April, 1932, and lived with him as his wife until February, 1936. A daughter was born of the marriage. In February, 1936, the respondent left India for England and has not returned to India. He has neglected to provide for the maintenance of his wife and child and on the 6th July, 1937, the petitioner was compelled to file an application in the Court of the District Magistrate of the Nilgiris at Ootacamund for an order directing the respondent to pay a monthly sum for their maintenance. The amount asked for was Rs. 350 per mensem. The petitioner also asked that steps be taken under the Maintenance Orders Enforcements Act, 1921, with a view to the Magistrate's order being confirmed by the proper authority in England.
2. The application was dealt with by the Magistrate on the date of filing. He held that inasmuch as the petitioner had asked for an order for a sum of Rs. 350 he had no jurisdiction to hear the application, and dismissed it, notwithstanding that the prayer in the petition was for a sum of Rs. 350 per mensem, or such other sum as the Court might deem fit. It is not surprising that an application for revision of this order was filed in this Court. The revision application came before Newsam, J., on the 15th October, 1937. The learned Judge granted it and directed the Magistrate to dispose of the application on its merits. In the course of his order the learned Judge expressed the opinion that the Magistrate had no power to pass an order, for more than Rs. 100 for the maintenance of both the mother and the daughter. He refused to accept the decision of Devadoss, J., in Kent v. Kent (1925) 49 M.L.J. 355 : I.L.R. 49 Mad. 891 and that of the Calcutta High Court in Tulsi Das Burman v. Sm. Saraju Dei Devi 37 C.W.N. 655. The order of Newsam, J., having been transmitted to the District Magistrate, an order for the payment of Rs. 100 per mensem for the maintenance of the wife and daughter was passed against the respondent on the 13th November, 1937. The petitioner now asks for revision of that order.
3. The petitioner says that Newsam, J., misinterpreted the section and should have held that the District Magistrate had power to pass an order directing the respondent to pay Rs. 100 per mensem for the maintenance of the petitioner and Rs. 100 for the maintenance of the daughter. We consider that this contention is well founded. Section 488(1) of the Criminal Procedure Code reads as follows:
If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding one hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
4. It will be observed that the word 'or' is used. Power is given to make an order for tae maintenance of the wife 'or such child'. Therefore an application can be made for the maintenance of the wife or for the maintenance of the child. There is nothing in the section which says that if an application is made on behalf of the wife an application shall not lie on behalf of the child. The application now before us can be treated as an application for an order in favour of the petitioner and also for an order in favour of the daughter. In Kent v. Kent (1925) 49 M.L.J. 355 : I.L.R. 49 Mad. 891 Devadoss, J., rightly pointed out that to contend that when a woman makes an application for herself and for her children she could only be given Rs. 100 for the maintenance of herself and of her children whatever be the number, is opposed to the clear wording of the section, and added:
If the petitioner's construction of the section is correct it would amount to this : if a person has an illegitimate child and an application is made under this section and Rs. 100 is awarded to that child and if that person afterwards refuses to maintain his wife and the legitimate children, the wife and the legitimate children would have no remedy against him, for the sum of Rs. 100 has already been awarded for the support of the illegitimate child, and no further order can be made on behalf of the wife and legitimate children as no Magistrate can award more than Rs. 100 for all the persons whom he is bound to maintain.
5. In Tulsi Das Burman v. Sm. Saraju Dei Devi 37 C.W.N. 655 Panckridge and Patterson, JJ., quoted with approval the decision of Devadoss, J., and refused to follow a previous unreported decision of Jack, J., to a contrary effect. In Palmerino v. Palmerino (1926) 28 Bom. L.R. 1299 a Bench of the Bombay High Court did interpret the section in the way it was interpreted by Newsam, J., but this was an ex parte application, and it was not fully argued.
6. We have no hesitation in accepting the decision of Devadoss, J., as being correct. I may mention that the learned Public Prosecutor who appear on behalf of the Crown supports the application for revision of the District Magistrate's order.
7. For reasons indicated the application will be allowed and the order of the Magistrate will be varied by directing the respondent to pay Rs. 100 per mensem for the maintenance of the petitioner and Rs. 100 per mensem for the maintenance of the child. The case will be remitted to the District Magistrate in order that he may pass all necessary orders under the Maintenance Orders Enforcements Act, 1921.