SARRA Vs. MAQBOOL TANTRAY

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Anantnag, in a case under section 488 Cr. P. C. decided by the Judicial Magistrate; Shopian.

(2.) AN application under section 488 Cr, P. C. was moved before the afore said court by Mst; Sara for grant of maintenance for herself and also for her child. The Magistrate has declined to grant maintenance in favour of Mst. Sara, the petitioner, on the ground that she has refused to live with the husband, when an offer was made to her for this purpose. Curiously he has also declined the prayer of Mst. Sara to grant maintenance in favour of the child on the same ground, The learned Sessions Judge has recommended that the order of Magistrate being perfunctory be set aside. Mr. M. L. Bhat the learned counsel for the respondent has agreed that the order passed by the Magistrate is not according to law.

(3.) I fail to comprehend as to how the Magistrate has refused to grant maintenance to the child on the ground that the mother has refused to send the child to the hold of the respondent, his father. A statutory duty is cast upon the father to maintain the child in all circumstances and the father cannot shrik this legal duty. Nor can the court refuse to grant maintenance to the child on the family ground that the later has refused to came to his fold. This will not dis -entitle the child to claim maintenance.