KOLI ODHA SAMAT Vs. BAI BALU JERAM

JUDGEMENT

(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. 50/ - 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 vasectomy 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 Procedure 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 actual custody of the wife, who refuses to stay with her husband, the husband is, nonetheless, obliged to provide them maintenance contemplated by Section 488 of the Code. This view is fortified even by the scheme of the section, because, reference to the first proviso which is attached to sub -section (3) of Section 488 of the Code, shows that the 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. In other words, wherever children of a person would be, they are entitled to claim maintenance under Section 488 of the Code.