C.R. Thakur, J.
1. In Criminal Revision No. 62 of 1975 the petitioner is the son and the respondent is the father. The petitioner is residing with his mother who has been divorced by the respondent and the petitioner at present is in the custody of the mother and the petitioner through his mother and guardian, filed an application under Section 488 of the Cri.P.C. on 6th of March, 1973 in the Court of the Judicial Magistrate, first class, Simla for grant of maintenance of an amount of Rs. 500/- per month from the date of the application. This application was opposed by the respondent.
2. The learned Magistrate after examining the evidence came to the finding that the petitioner was entitled to maintenance at the rate of Rs. 200/- per month with effect from the date of the order which was passed on 30-6-1975. Against this order Kanwar Dang again filed this present petition and it was prayed that the maintenance instead of 30-6-1975 be ordered to be paid to the petitioner from 5-3-1973 and the amount of maintenance be enhanced from Rs. 200/- per month to Rs. 500/- per month. According to the petitioner the Court below had erred in granting him a meagre amount of Rupees 200/- by way of maintenance and further also erred in granting this amount only from the date of the decision of the application. So this revision was preferred only for enhancement of the amount of maintenance as also to grant the same from the date of the presentation of the application.
3. The father, Dr. Vasudev Dang, also preferred a revision petition against the order of the learned Judicial Magistrate before the Sessions Judge on the ground that the learned Magistrate had not taken into account the earnings of the mother of the child. Furlhei that the petitioner had specifically pleaded that he is ever ready and willing to maintain the child provided the custody of the child was given to him, that Dr. Supriya was pot willing to give the custody of the child to the natural guardian. Further that there was an offer to maintain the child which was specifically pleaded in the written statement and the effect of the same had not been considered by the learned Magistrate. That there is no reason shown on the record as to why the child is not permitted to live with the petitioner who is the natural guardian, that there is no finding and evidence on the record that the child is unable to maintain itself and lastly the allowance fixed by the learned Magistrate at Rs. 200/- per month is extremely excessive.
4. This revision petition was also ordered to be transferred to this Court by my order dated 22-3-1976 so as to avoid any conflicting decisions and this revision petition has now been registered as Cr. Revision No. 13 of 1976. Both these petitions shall be disposed of by this single judgment.
5. The brief facts are that Dr. Supriysi, the mother of Kanwar Dang was married to the petitioner on 21-6-1966. At that time she was working as House Surgeon at Hajindra Hospital, Patiala which job was to continue till 3.1-12-1966 but at the instance of her husband Dr Vasudeva, who at that time was working as a Medical Officer, Indian Red Cross Clinic for Tibetian Refugees, Simla, resigned her job in July, 1966. During her stay in Simla, with her husband, she conceived but due to some ill treatment etc., she left for Patiala in the month of September, 1966. Due to mental shock and as a result of accidental slipping she had to undergo operations of D. and C. twice. When she recovered from the shock, she got employment in the Red Cross Maternity Hospital, Hoshiarpur in December, 1966. When the husband learnt that she had got employment, he started writing letters to her in order to request her to join him with the result that she visited Simla and remained there from 2nd March to 12th March and again on 27th and 28th March 1967 during which period she cohabited with her husband and she conceived, and as a result of this conception, Kanwar Dang was born to Dr. Supriya from the loins of Dr. Vasudev Dang on 17-12-1967 at Patiala. In the month of May/June, Shri Vasudev Dang left his job at Simla and on his way to Dehradun, he first went to Hoshiarpur where he asked his wife to render him some financial assistance as he was to set up his own clinic at Dehradun, but when he could not get any assistance then the matter came to such a pass that they decided to separate and on reaching Dehra Dun he filed a petition for divorce before the Civil Judge, on the allegations that the parties last stayed at Dehradun as husband and wife, and, therefore, Dehradun Court had jurisdiction to try the petition. The contention of the petitioner was denied by the respondent who stated that she had not gone to Dehradun to stay with her husband but had gone with the intention of totajly separating herself from the petitioner and to take back her certain articles from there. The Civil Judge upheld the contention of the wife that the Court had no jurisdiction. It appears that the District Judge on appeal, set aside the order of the Civil Judge and he held that Dehra Dun court had jurisdiction to hear the petition because according to him she had gone to Dehra Dun and stayed there at least for three days and this stay was enough to give jurisdiction to Dehra Dun court But the Allahabad High Court on revision by the wife relying on the interpretation of word 'reside' and 'last resided' as given by the Supreme Court in Mst. Jagir Kaur v. Jaswant Singh : 2SCR73 and some other decisions of other High Courts held that these decisions clearly showed that a casual visit or a temporary visit with an intention other than to reside would not confer a jurisdiction under Section 19 of the Hindu Marriage Act to entertain the petition. The revision, therefore, was allowed and the order of the learned District Judge was set aside and the order of the trial Court ordering the return of the plaint was restored, This case is reported as Dr. Smt. Supriya v. Dr. Vasudev Dang, : AIR1973All94 .
6. In the revision petition filed by the father that is, Cr. R. No. 13 of 1976 it had been contended that the learned Chief Judicial Magistrate, Simla had no jurisdiction to entertain and try the application under Section 488 Cr.P.C. when admittedly the petitioner is residing at Dehra Dun and the parties did not last reside within the jurisdiction of the Court at Simla. The father had taken this objection of jurisdiction in bis reply to the petition filed by Kanwar Dang in the Court of the Chief Judicial Magistrate, Simla. According to him the jurisdiction was either with the Court at Dehradun or the Court at Hoshiarpur, where he last visited and resided with bis wife Supriya and, therefore, the Court of Chief Judicial Magistrate, Simla bad no jurisdiction. This was a case undei the old Code. According to Sub-section (8) of Section 488, proceedings under this section my be taken against any person in any district where he resides or is or where he kst resided with his wife, or, as the case may be, the mother of the illegitimate child. The application was brought in the Simla Court by Smt. Supriya who is now divorced, on 'behalf of the child because she last resided with her husband at Simla where she cohabited and conceived and as consequence of which Kanwar Dang was born. In so far as the question that they last resided at Dehra Dun that stands already concluded by the judgment of the Allahabad High Court reported as : AIR1973All94 (supra) Dr. Smt. Supriya v. Dr. Vasudev Dang. While interpreting the word 'last resided' in Mst. Jagir Kaur v. Jaswant Singh : 2SCR73 their Lordships observed as below:
A makes only a flying visit and he has no intention to live either permanently or temporarily in the place he visits. It cannot, therefore, be said that he 'resides' in tbe places he visits.
It was also observed in this judgment:
Whichever meaning is given to it, oae thing is obvious and it is that it does not include a casual stay in, or a flying visit to a particular place or in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile In its technical sense. The purpose of the statute would be better served of the word 'resides' was understood to include temporary residence'. In so far as the jurisdiction of Allahabad High Court as already observed, stands concluded by the judgment of the Allahabad High Court and that the parties did not reside last within the jurisdiction of the Courts at Dehradun.
7. The further submission that it is the Court at Hoshiarpur, which has got the jurisdiction is also not tenable. The document Ex. Rl reads as under:
For Dr. Supriya, M.B. B.S..
We husband wife, Vasudev and Supriya (Dr). want judicial separation leading to divorce. Husband wants it more in the interest of happiness and prosperity of opposite party.
Vasudev Dr. Supriya
This document was admittedly executed at Hoshiarpur on 22-6-1967, when Shri Vasudev left his job at Simla. Enroute Dehra Dun to open a clinic there he went to Hoshiarpur to his wife (Supriya) to ask for some financial assistance. This document although is inadmissible for proof of divorce but it may certainly be looked into for a collateral purpose i.e., to show as to what was the intention of Shri Vasudev in going to Hoshiarpur. Whether he went with the intention to stay there temporarily in the company of his wife or this visit was with an intent to put an end to the marital tie. From this document, therefore, it would appear that the intention to visit Hoshiarpu was not for his temporary stay and to enjoy the company of his wife but he intended to end the marital relations. Therefore, it cannot be inferred that he last resided even temporarily with Mrs. Supriya at HosbJarpur so as to give jurisdiction to that Court Therefore, the plea that it is the Court at Hoshiarpur where they last resided Is not tenable nor the plea that they last re-aided at Dehra Dun is available to him in view of the decision of Allahabad High Court. Therefore, the question of jurisdiction is decided accordingly, against the father petitioner.
8. The further submission made by the father petitioner is that the petition by the son under Section 488 through the mother was not maintainable in view of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which specifically provides that the natural guardians of a Hindu minor, m respect of the minor's person as well as in respect of the minor's property are the father and after him the mother provided that the custody of a minor who has not completed the age of five years, shall ordinarily be with the mother. The petition m this case was filed in the Court of the Chief Judicial Magistrate, Simla on 6-3-1973 and the petitioner son, therefore, was of 5 years and 242 months of age at that time. Therefore, according to him the father being the natural guardian, the mother was not competent to file the petition for maintenance for the child. For the proposition that the petition is not maintainable because it has been filed by the mother who is not the natural guardian in the case of the son who has completed five years of age and whose natural guardian under the Hindu Minority and Guardianship Act, is the father, the learned Counsel has relied on Sobha Devi v. Bhima, : AIR1975Ori180 decided by the Orissa High Court. This authority in my opinion, has got no relevancy for the purpose of the decision of the present application which is made under the provisions of Section 488, Cr.P.C. In fact it was a civil suit before the Court brought by the wife claiming past and future maintenance for herself and for the minor son, against her husband defendant No. 1 and with a further prayer for making it a charge on the property of the defendant No. 1 in which the defendant pleaded that she had gone to her father's house of her own accord taking the minor son and that he had made several attempts to bring her back but failed and that she wanted to enjoy her life and that is why she preferred to remain in her father's house. He further averred that he was very anxious to take his son, to educate him as well as also his wife to have a happy conjugal life and that it was the plaintiff's mischievous nature that has deprived him of both. The suit was dismissed and with regard to the claim for maintenance in respect of the son the Court held that the mother was incompetent to bring the suit on behalf of her son. Before the High Court, it was contended that this view taken by the lower Court was incorrect. But the learned Judge in the High Court repelled this contention holding that the mother has been described under Section 6(a) of the Act as a natural guardian of the Hindu minor, but that is only after the father of a minor. As long as the father is alive the mother cannot claim to be the competent natural guardian of a Hindu minor and therefore, it was held that the suit was not maintainable especially when during the pendency of the suit the father had brought a proceeding claiming the custody of the child which was resisted by the mother who had stated as:
I am not willing to send my son to my husband's house even if my husband is willing to meet his maintenance and education expense.
So it was in these circumstances, that the suit was held not to be maintainable. Under Section 488 an application for maintenance made on behalf of the minor son by his mother cannot be refused merely because he is living with his mother or the mother had been refusing to hand him over back to the custody of the father who may be his natural guardian according to the personal law of the parties. There is a distinction between a claim for maintenance under Section 488 and a claim for it in a Civil Court. The question as to whether the father is or is not fit to have the custody of his child, is a matter for the civil and not for the Criminal Courts. Hence in a proceeding under this section, the criminal Courts are only concerned with the fact of its custody and not the propriety of that custody as has been argued by the learned Counsel for the father. When the matter goes to a Civil Court, it has to consider whether the father is not the lawful guardian of the child, whether for any reason he is unfit to have its custody. The criminal Court therefore, has to give a proper and speedy relief as contemplated in this section and the question of personal civil liability is not to be considered by the criminal Court Consequently this submission made by the learned Counsel for the petitioner on the basis of : AIR1975Ori180 (supra) is not tenable because it is not a civil suit where the propriety of the custody of the child is to be determined.
9. The second submission is that the father was ever willing and ready to keep the child and, therefore, in these circumstances according to the learned Counsel basing his submissions on Ralla v. Mt. Atti. AIR 1914 Lah 417 (1) : 15 Cri LJ 529 Sultan v. Mahtab Bibi AIR 1926 Lah 536 : 27 Cri LJ 1319, Man Singh v. Mt. Dharman 1894 Punj Re 18 (Cr) the mother is not entitled to claim maintenance for the son. These authorities in my opinion have got no applicability in view of the different facts of the case. The Court below has come to a finding that the reply of the father that he was ever ready and willing to maintain and can bring up the child was not correct. He has discussed the evidence and the claim oi the father and he has, therefore, held that there was neglect or refusal on the part of the father to maintain lie child and this finding of fact cannot be assailed in a revision petition. Moreover, so long the child is in the custody of the mother, the father cannot refuse to maintain him even if the son is unwilling to go and live with his father or the mother is not prepared to send him. The statement of the father in the Court that he is ever ready and willing to support and keep him provided the child is sent back by the mother, is no ground to refuse to maintain unless the father applies for the custody of the child aSi provided by law. Here I may cite with advantage the case of Balbir Singh v. Hardeep Singh 77 Pun LR 727 : 1976 Cri LJ 1136 (FB) which is a Full Bench judgment and in which it has been held as under:
That having regard to the provisions of Section 488 Cr.P.C. the position of law may be summarised as follows:
(1) If the child was living with the mother who was its natural guardian, the father is bound to maintain it and it is not open to him to impose a condition that the child must live with him.
(2) Even in a case where the father is the natural guardian, but the child is in the custody of the mother, father's obligations to maintain the child subsists and he cannot impose a condition requiring the child to come and live with him in case the child has not attained the age of discretion or is not living with the mother of its free will or volition.
(3) In such a case, in order to escape his liability to pay maintenance allowance, the father must obtain the custody of the child from the proper Court, but till the custody is obtained, the child must be maintained wherever it is.
(4) Father's liability to maintain the child does not cease merely because the child has attained the age of discretion but is living with the mother on account of natural love and affection or attachment with her. Till the father gets the custody of the child, it can successfully claim maintenance.
The offer of the father that he was ready and willing to maintain the child if he was sent back will not exonerate the father if the minor refuses or does not go to the house of the father, but prefers to stay back with the mother. Proviso to Sub-section (3) applies only in the case of a wife who will disentitle her to maintenance if she refuses although there is a genuine offer on behalf of the husband. But this proviso has no application in the case of a minor son. Therefore, it would appear that the father is bound to maintain bis minor son.
10. The further submission made by the learned Counsel for the father petitioner is that the son had to show that he was unable to maintain himself and unless this fact was established the father could not be compelled to pay maintenance. But this submission also does not appear to be tenable because the child was only 5% years of age at the time of the application for maintenance and it cannot be accepted that he has a physical and mental development so as to earn his independent livelihood. It is not the case of the father that he is possessed of sufficient independent means to maintain himself. He is in the custody of the mother, who may have her own income but the income of the mother, in my opinion, cannot be taken into consideration to disentitle a son from claiming maintenance from his father. Therefore, it is sufficient when the child is a minor and the father does not contend that he has got means to hold that the son is unable to maintain himself and the father, therefore, is liable to pay a maintenance allowance for the child who elects to live with its mother.
11. Now I come to the question of quantum of maintenance. The learned Chief Judicial Magistrate has discussed the evidence at length and considered all the aspects and status of the father and the income from various sources and, therefore, this finding of fact in this revision petition, when the evidence has been properly considered and analysed, his decision cannot be interfered with even if this Court may come to a different conclusion on the same findings unless the petitioner shows that there is grave illegality or manifest injustice done by the Court below. The maintenance fixed is neither on the higher side nor can it be said to be very meagre. Keeping in view the status and the means and the capacity of the father, the Court below has fixed this monthly maintenance which cannot easily be disturbed in revision by this Court.
12. It was also submitted by the learned Counsel for the son that the maintenance should have been fixed from the date of the application instead of from the date of decision. In this behalf reference may be made to Sub-section (4) of Section 488 which reads as:
Such allowance shall be payable from the date of the order or if so ordered, from the date of the application made.
In the instant case the learned Magistrate has ordered the payment of the maintenance from the date of his order that is, 30-6-1975 and the law says that it shall be payable from the date of the order unless it is so ordered that it shall be payable from the date of the application. The learned Magistrate has exercised this descretion which cannot be said to be arbitrary and in my opinion this point calls for no interference. Both the petitions therefore, fail and are hereby dismissed and the order passed by the learned Chief Judicial Magistrate is upheld. The parties to bear their own costs.