STATE OF MAHARASHTRA Vs. ANWARBI

JUDGEMENT

(1.) ANWARBI's application under Section 488, Criminal P. C. for maintenance for herself and her daughter Mahmoodabi, 7 years, against Rahmatsab was dismissed by the First Class Magistrate, Burhanpur, on the grounds that she failed to prove that he had expelled her from his house, that she refused to return to him although he was willing to keep her and that she was not prepared to go back to him. Anwarbi then went up in revision; and the Additional Sess. Judge, Nimar, has reported the case under Section 433, Criminal P. C. with a recommendation that the dismissal of the claim for maintenance was, so far as it relates to the daughter, wrong. Anwarbi has filed an application for revision against the order refusing maintenance to her.

(2.) ANWARBI's suit for dissolution of marriage viz. , civil suit No. 43-A of 1946, was dismissed by the 1st Civil Judge, Class II, Burhanpur; and her appeal was also unsuccessful. She then filed a second appeal in this Court. The application under Section 488, Criminal P. C. was made in September 1950 and in 1945-46 Rahmatsab had married again.

(3.) THE view of the learned Additional Sessions Judge, Nimar, 'vis-a-vis' Mahmoodabi's claim for maintenance is undoubtedly correct. In - San Pe Mg, v. Ma Lai Mai 10 Rang 486, Page C. J. held that a father is bound by law to maintain his child even though the child is living with its mother who refuses to return to her husband under a decree for restitution of conjugal rights, and that it is open to the father to apply to the Court for the custody of his child. In - Kuppala Krishtappa v. Premaleelamani. AIR 1942 Mad 705, it was held that as long as the child is with the mother, the mother must be given sufficient to maintain it; and if the father has a right to the custody of the child, he can at any time institute proceedings for that purpose. In the present case, Anwarbi is the legal guardian of Mahmoodabi under Muhammadan Law, as Mahmoodabi has not yet attained the age of puberty. Anwarbi may in certain circumstances be disqualified from being her daughter's guardian; but, if she is so disqualified, it is open to Rahmatsab to move a competent Court to appoint him or some one else as Mahmoodabi's guardian. Until he does so, Anwarbi is the natural guardian and there is nothing in the provisions of Section 488. Criminal P. C. to show that he is entitled to demand the custody of Mahmoodabi from her lawful guardian as a condition precedent to maintaining her.