Allahabad High Court
Koli Odha Samat vs Bai Balu Jeram on 28 September, 1971
ORDER T.U. Mehta, J.
1. This reference is made by the Sessions Judge, Bhavnagar in Criminal Revision Application No. 4/71 of his file against the order of maintenance awarded by the court of J. M. F. C. at Bhavnagar in Criminal Misc. Application No. 88/69 to the opponent, Bai Balu Jeram and her three minor children. The applicant, Koli Odha Samat, is admittedly the husband of this opponent and the father of two sons and one daughter born during the course of their wedlock. These three children are respectively of the ages, of 11, 9 and 7 years. The wife filed a petition for maintenance against her husband under Section 488 of the Criminal Procedure Code claiming maintenance for herself at the rate of Rs. 50/-per month and for her three minor children at the same rate. She alleged that she was driven out by her husband and was ill-treated and, therefore, she had to leave the custody of her husband along with her three minor children. She is also found to have claimed maintenance on the ground that her husband was making false allegations against her character. On consideration of the evidence, which was offered by the parties, the learned Magistrate allowed this application and ordered the maintenance for the opponent-wife at the rate of Rs. SO/- and for her three minor children at the same rate. Thus the husband is made to pay the maintenance of Rs. 100/-per month for his wife' as well as his three children.
2. Against this order the applicant-husband preferred revision application before the Sessions Court, Bhavnagar: This revision application was registered as Criminal Revision Application No. 4/71. The learned Sessions Judge has found that there is no evidence to show that the applicant-husband had ever refused or neglected to maintain his three children which are in the custody of his wife, that the prosecution has failed to prove that the wife was maltreated by the husband and that the husband had a reasonable cause to suspect her conduct because he had undergone a vasec-tomy operation on 27-9-64 and even thereafter his wife had begotten a child on 2-3-68. According to the learned Sessions Judge, therefore, the learned Magistrate had no justification for passing the maintenance order for the applicant's wife and three children. Further the learned Sessions Judge has observed that the net income, which the applicant-husband earns after all deductions from his pay, comes to Rs. 121/-per month and even though there is evidence to show that the opponent-wife earns something by doing stray labour, the learned Magistrate has not acted properly to award maintenance to the wife for herself and her children at the rates demanded by her. According to the learned Sessions Judge, therefore, the order of maintenance passed by the learned Magistrate should be quashed.
3. Now so far as the three children are concerned, it is undoubtedly true that the petitioner is not found to have ever refused to maintain them provided they stayed with him, and it is also true that even at present he is ready to maintain them as on the same conditions. In fact on his behalf his learned Advocate has strenuously urged me to do something so that these children would reside with him. It is for this reason that the learned Sessions Judge has held that the learned Magistrate ought not to have passed any order as regards the maintenance of these children. In my opinion this view of the learned Sessions Judge is not correct. It is undoubtedly true that Sub-section (1) of Section 488 of the Criminal Procedure Code contemplates neglect or refusal to maintain one's own wife or legitimate or illegitimate children, who are unable to maintain themselves. But so far as the minor children, who are not able to maintain themselves are concerned, the law is that wherever they are found, their father is bound to maintain them under the provisions contemplated by Section 488 of the Criminal Procedure Code. One reason, which has guided the courts to come to this conclusion is that minor children are never capable of taking a decision and therefore, they are not capable of deciding whether the offer of their father to maintain them provided they stayed with him should be accepted or refused. They are also incapable of deciding who shall have their actual custody. Under these circumstances, if these children are found to be in possession of their mother and if mother unreasonably refuses to reside with her husband, minors cannot be considered liable for the same and their father, who is legally obliged to maintain them, cannot escape from his liability under Section 488 of the Criminal Pro-1 cedure Code on the ground that he would; maintain them provided they are put in his custody. The question as to who is better entitled to the custody of minors, is not relevant for the purposes of deciding the rights of the minors to get maintenance under Section 488 of the Code. Therefore, even if the minors are found in the act of custody of the wife, who refuses to stfay with her husband, the husband is, nonetheless, obliged to provide them maintenance contemplated by Section 488 of the Cc(de. This view is fortified even by the schene of the section, because, reference to the first proviso which is attached to Sub-section (3) of Section 488 of the Code, shows that tlje Legislature has contemplated only the offer made by the husband to maintain his wife and the ground of the wife for her refusal to stay with her husband. This proviso significantly omits the consideration of the offer made by the father to the minor children to reside with him. This omission, in my opinion, sufficiently explains the whole scheme of .Section 488 of the Code, because, it shows that the father who is once found liable to maintain his minor children cannot absolve himself from that liability on the ground that he is ready to take them under his shelter. If the possession of the minors was relevant or material for the purpose of passing the order of maintenance under Sub-section (1), this proviso would have surely made the offer of maintenance conditional on the minors living with the father, a criterion for future maintenance, as is done in case of wife. Therefore, the scheme of Section 488 satisfactorily reveals that the actual custody of the children is irrelevant for the purpose of deciding the question of their maintenance under that section. Tn other words, wherever children of a person would be, they are entitled to claim maintenance under Section 488 of the Code.
4. The above view is taken by almost all the High Courts in India. I would, therefore, shortly refer to a few of those decisions. In Ebrahim Mahomed v. Khur-shedbai Ebrahim AIR 1941 Bom 267 : 42 Cri LJ 639, a Division Bench of thgt High Court has held that the object of Section 488 is to avoid vagrancy by providing that a Magistrate, may upto a limited extent, see that a wife and children are maintained by a husband or father able to maintain them. The said Bench has further observed that if, in fact, the children are living with the wife, and if in fact, the father is refusing or neglecting to maintain them where they are living, the Magistrate has jurisdiction to make an order. In, such cases if the father's case is that the children ought not to be living with his wife, but ought to be living with him or under his direction, then he must take proper proceedings in a civil court to get the children removed from the custody of the mother. This decision being a Bombay decision given by a Division Bench of that High Court prior to the formation of the State of Gujarat, is obviously binding on me. Another decision is Saurash-tra decision given in the case of Aher Mulu Mensi of Loj v. Bai Sajan Arsi, (1955) 8 Sau LR 371, wherein it is held that the husband's right to the custody of the child is not an element to be considered in proceedings under Section 488 of the Criminal Procedure Code, and irrespective of the propriety of the wife's custody of the child, the husband is bound to maintain the child provided it is proved that the husband has cither neglected or refused to maintain the child. In Madras case of Mohideen Bi v. Bashu Sahib AIR 1937 Mad 809, it was held that where a woman, who is the legal guardian of her children, forsakes her husband without any reasonable excuse, although the husband is willing to maintain her, she is not entitled to any maintenance, but the children, being in her custody, should be granted maintenance. In Maung San Pe v. Ma Lai Mai AIR 1932 Rang 183 : 33 Cri LJ 918, it is held that a father is bound to maintain the child even though it is living with his mother against whom decree for restitution of conjugal rights was passed. According to the High Court, the correct procedure is that father should apply for custody of the child. Hyderabad case of Rahimunnissa v. Mohd. Ismail AIR 1956 Hyd 14 : 1956 Cri LJ 47, holds that a child does not stay away by his own choice; he cannot be deprived of his rights of maintenance because his mother refuses to give him in his father's custody. The decision proceeds further to say that father cannot, under Section 488, insist that the children should be given in his custody as a condition precedent for maintaining them. Punjab High Court has also taken same view in Abnash Chander v. Smt. Soshila Devi . It is observed in this case that the position of a child who has not attained the age of discretion or who is not of its own free will or volition living away from the father is peculiar. Therefore, if such a child is kept in custody by the mother and is prevented from returning to the father, it cannot be said that the child is at fault and that its conduct has disentitled it to maintenance. The judgment further proceeds to assert that even if a child prefers to live with the mother due to natural affection or attachment for her, that would not affect the liability of the father to maintain the child, and in such circumstances, where the father objects to the custody of the child and asserts his own legal right thq proper course for the father would be to apply for its custody, but so long as the custody of the child remains with the mother, the father cannot refuse to pay maintenance for the child irrespective of the fact whether or not the mother has a right to be maintained by him.
5. Thus, looking to this position in law, I do not agree with the learned Sessions Judge when he says that the petitioner is not bound to provide any maintenance for his three minor children, who are in the custody of the mother.
6. Evidence shows that the petitioner-father earns a salary of about Rupees 160/- out of which net amount of Rupees 121/- comes in his hands. Looking to his net earning income and also looking to the status of the parties as well as the age of the three children, I am of the opinion that monthly maintenance of Rs. 45/- as between all the three children would be sufficient.
7. So far as the opponent-wife is concerned, evidence shows that there is absolutely nothing therein to prove that she was ever maltreated by her husband. The only grievance which is made by her is that the petitioner makes allegations against her chastity on account of her fourth child, who is dead. Here I find that there is evidence to show that the petitioner has undergone the operation of vasectomy on 27-9-64 but even thereafter on 2-3-68 the opponent-wife gave birth to a child. It was contended that many a time even vasectomy operation does not work quite successfully. That may be so, but if the petitioner had undergone this operation as early as 1964, it cannot be said that the suspicion which he entertained with regard to opponent No. 1the wife, was totally unjustified. It is further found that even in spite of this fact the petitioner husband has made several offers to bring the opponent to his house. Under the circumstances, the learned Sessions Judge is right in concluding that there is no evidence for coming to the conclusion that the petitioner has refused or refuses to maintain his wife. Under the circumstances, I find that the opponent-wife is not entitled to any maintenance from her husband.
8. Looking to the facts of the case, the petitioner-husband is ordered to provide maintenance from 1st June, 1971. The arrears shall be paid up by him at the monthly instalment of Rs. 25/- over and above the maintenance which is fixed by this judgment. The order as regards the maintenance of the wifethe opponent No. 1 is set aside.
9. The reference is therefore, partly allowed and the rule is made absolute accordingly.