1. This is a revision against the order of maintenance passed against the petitioner herein who was the respondent in the lower court. The maintenance is claimed by the mother on behalf of her three children. She claimed maintenance only on behalf of her children. There was no marriage between her and the petitioner herein. The lower court directed the petitioner herein to pay maintenance at the rate of Rs. 20 for the first child, aged six years at the time of the petition, and Rs. 10 each for the other two children aged 3 and 1 at the time of the petition.
The evidence shows that the mother was a doctor earning about Rs. 270 to Rs. 300 a month, whereas the petitioner herein is a postal employee earning only Rs. 170. After deductions the net income is only Rs. 123-15-0. In fact the mother of the children earns twice as much and more than the father of the children. On these facts it is contended by Mr. Mohankumaramangalam that under Section 24 of the Guardians and Wards Act, as the guardian of the person of the ward must look to his support, it is the duty of the mother to support the children.
It is contended that Section 488 has been introduced in the Criminal Procedure Code to prevent vagrancy & in this case the mother is possessed of sufficient means and as she is the natural guardian of the person and she being charged with the custody of the ward, she must also look to their support, which means that she must maintain them out of her own income. But the very wording of the section, merely, 'must look to his support' in Section 24 of the Guardians and Wards Act invalidates that the guardian must look elsewhere for support.
As pointed out in-'V. J. Walter v. M. J. Walter : AIR1928Cal600 it is the duty of the father to maintain and educate the children who are incapable of supporting themselves and although the law has always recognised this duty, the Civil Courts have no direct means of enforcing this obligation so as to compel him to maintain them out of the property in which they have no interest. This is with regard to the law which governs parties who are Christians.
2. Then the learned Judges referred to the judgment of Lord Eldon L. C. in - 'Wellesley v. Duke of Beaufort' 1827 2 Russ 1 (B) and pointed out the rules governing such cases in England. The observations of Lord Eldon L. C. are these:
You may go to the Court of King's Bench for a Habeas corpus to restore the child to the father; but when you have restored the child to the father, can you go to the Court of King's Bench to compel that father to subscribe even to the amount of five shillings a year for the maintenance of that child? A Magistrate may compel a trifling allowance, but I cannot believe that there was ever a mandamus from the court of King's Bench...The courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father.
But under the Criminal Procedure Code, the duty of maintaining the child is cast upon the father, and whatever may be the civil law, the provisions of Section 488, Criminal P.C. are quite 'equal to the office of enforcing the duties of the father' which is to maintain the child, legitimate or illegitimate. No such duty is cast on the mother, either under the Code or any other law. There can, therefore, be no question of invoking any general principles with regard to the maintenance of a child whether it is obligatory on the part of the mother as in the present case, or on the Tavazhi as in the case of a Malabar tarwad.
Under the Criminal Procedure Code, it is clear that it is the father who has got to maintain the child and therefore the court is entitled to order a certain amount to be paid to the guardian of the minor children towards the maintenance of the children. The maintenance contemplated in that section is food and clothing. It does not include education and other matters. The court can order only as much as is necessary for the food and clothing of the children. Though in this case the lower court has referred to the fact that the first child is likely to go to school, I am not prepared to say that the sum of Es. 20 granted to the first child is excessive even for maintenance as such.
I would therefore direct this sum of Rs. 20 per month be paid to the first child as maintenance pure and simple and not for any other purpose. It is not disputed that the sum of Rs. 10 each granted for the other two children was for the purpose of maintenance only.
3. The only argument advanced is that after making all compulsory deduction which the petitioner has got to pay from out of his income, what remains is barely sufficient even for himself, and therefore the maintenance awarded is excessive. But the finding of the lower court is that his salary and allowances come to Rs. 170 and it is only after making the compulsory deduction that his income comes to Rs. 123-15-0. Out of this, Rs. 40 for three children for whom he is responsible can never be said to be excessive. The lower court's order is confirmed & this revision dismissed.
4.The arrears which the petitioner has got to pay after stay has been granted by this court will be paid in four monthly instalments of Rs. 25 each commencing from 1st September 1955.