OMBI Vs. ACHUTHAN

JUDGEMENT

(1.) This petition is to revise the order of the Court of the District Magistrate of Cochin in Miscellaneous Case No. 81 of 1122 directing the counter petitioner in the case to pay a monthly allowance for the maintenance of his two minor children on the application presented to the court by their mother one Kamalakshi. The petitioner before this court is admittedly the father of the children. His marriage with Kamalakshi was dissolved by an order of the Civil Court on his application for the purpose filed under S.7(3) of the Cochin Thiyya Act (VII of 1107) Ext. A is the copy of the petition filed by him and Ext. B is the copy of the order of dissolution of marriage passed by the Court of the District Munsiff at Ernakulam. The application for maintenance filed under S.389 of the Cochin Criminal Procedure Code was contested by him on the ground mainly that he was entitled to the custody of the children as he was their legal guardian and that he was not liable to maintain them so long as they remained with their mother Kamalakshi who lived an unchaste life. The learned District Magistrate found on the evidence that there was neglect or refusal on the part of the petitioner to maintain the children, that the mother was the legal guardian of the children under law governing the parties; it was observed that even if the father had the right to the custody of the children he was liable to maintain them so long as they remained with the mother. The bulk of the evidence adduced in the case related to the issue whether Kamalakshi did or did not lead an unchaste life and the court below stated that it could not come to any definite finding that she did lead an unchaste life although the evidence was sufficient to arouse strong suspicions against her character.

(2.) The leaned Advocate for the petitioner strenuously contended that the petitioner is the legal guardian of the children and that Kamalakshi is not entitled to have the custody of the children and claim maintenance on their behalf. The decision in Sultan v. Mahtab Bibi AIR 1926 Lah. 536 was cited as authority for the position that separate maintenance could not be claimed for children who were unreasonably withheld from their father who was ready to keep them with him and maintain them. The Magistrate ordered payment of maintenance to the children on the application of their mother without enquiring as to why she was unwilling to go and live with her husband when the latter was ready to receive her. In revision before the Sessions Judge, the husband contended that the woman was living in adultery and that she would not be entitled to any maintenance for herself or the children if she unreasonably persisted in living apart. Accepting this contention the Sessions Judge made a reference to the High Court recommending that the order of the Magistrate be quashed. The High Court thereupon passed the following order.- "There is no appearance on either side today. As recommended by the learned Sessions Judge I set aside the order". I do not know how this decision came to be reported for being cited as an authority for any proposition of law. The case went for default and the recommendation of the Sessions Judge was not considered on its merits. It is however possible to distinguish the case from the present one as it is the woman who applied for maintenance was the wife of the counter petitioner and when she living apart claimed separate maintenance for herself and the children, it was incumbent on the court to consider whether she had justifying reasons to live separately especially when the husband contended that he was prepared to maintain them if they went and lived with him. Kamalakshi had lost her status as wife to the petitioner and the latter could not have offered her any residence with him and the present case has therefore to be decided on different considerations.

(3.) The view held in the other case cited before me namely Prasad Gareri v. Mt. Kesari AIR 1941 Pat. 444 is that no order for maintenance of children can be passed against the father unless neglect or refusal to maintain his children is brought home to him. This view cannot be questioned on any ground, but a mere offer to maintain the children if they are left to the custody of the father cannot disprove the plea that the father neglected or refused to maintain the children. The learned District Magistrate has found as a fact that there was refusal or neglect on the part of the petitioner to maintain his children and I am not satisfied that there are sufficient grounds to justify an interference in revision with that finding of fact.