MARIYAM Vs. OUSEPH

JUDGEMENT

(1.) This is a petition to revise the order of the 1st Class Magistrate, Thodupuzha refusing to order maintenance to the minor daughter of the 2nd petitioner aged 4 years who is living with the petitioner. The contention of the counter petitioner husband is that he is prepared to maintain the child if the child is given to him and that since he has not neglected to maintain the child he is not bound to pay any maintenance allowance. This position is not tenable. A child does not stay away by its own choice and cannot be deprived of the right of maintenance simply because the child is in custody of the mother. The father cannot in a petition under S.488 Crl. P.C. insist that the child should be given in his custody as a condition precedent for maintaining the child.

(2.) This position is well settled. In Ebrahim Mohamed v. Khurshedbai (AIR 1941 Bom. 267). Beaumont, C. J., stated:

(3.) This was the view taken in two earlier cases reported in Emperor v. David Sessoon (AIR 1925 Bom. 259) and in In re Bai Manek (AIR 1928 Bom. 418). The same view has been taken in the case reported in Dinsab Kasimsab v. Mahamad Hussen Dinsab (AIR 1945 Bom. 390) where it is stated that in a proceeding under S.488, so far as the maintenance of a child is concerned, the criminal court is concerned only with the fact of its custody and not with the propriety of that custody.