The willingness of the father to maintain the child if given custody does not disentitle the child to maintenance if the mother refuses to give custody to the father.

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:

'The object of the section, no doubt, is to avoid vagrancy by providing that the Magistrate may up to a limited extent see that a wife and children are maintained by a husband or father able to maintain them. But the Magistrate must take the facts as he finds them to be. If in fact the children are living with the wife, and if in fact the father is refusing or neglecting to maintain them where they are living, I think that the Magistrate has jurisdiction to make an order. If the father's case is that the children ought not to be living with the wife, but ought to be living with him or under his direction, then he must take proper proceedings in a civil court to get the children removed from the custody of the mother"

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.

4. The same view has been taken by the Madras High Court in re Parathy Valappil Moideen (14 Crl. L.J. 597) and Kuppala Krishtappa v. Premaletamani (AIR. 1942 Mad. 795). In the latter case it has been held that it would be improper for the court to refuse maintenance for the child, merely because it was of opinion that the mother has no right to the custody of the child.

5. The Rangoon High Court in Maung San Pe v. Ma Lai Mai (AIR. 1932 Rang. 183) and the Hyderabad High Court in Rahimunnissa v. Mohd. Ismail (AIR. 1956 Hyderabad 14) have adopted this view.

6. In all these cases the decision is based on the construction of S.488, Crl. P.C. Proviso 1 to sub-section (3) relating to an offer to maintain, refers only to the wife and not to the child, and sub-sections 4 and 5 disentitle only the wife "to receive an allowance from her husband", if she refuses to live with her husband "without sufficient reason". Hence a Magistrate from whom a wife seeks an order for maintenance against her husband has power to see if there are sufficient reasons for her living separate from him. The reason why no reference is made to a child in the proviso and in sub-sections (4) and (5) is, well pointed out in the case in Mi Saw v. S. (11 Crl. L. J. 488). There it is stated:

"Living together in the case of husband and wife is a thing of a special character. It is an incident of matrimony. It is, therefore, intelligible that the legislature should provide that maintenance is not to be paid to a wife living separate, unless she has good cause for refusing to live with the husband.

The case of children is different. Where the parents have divorced, the children, if in the mothers' custody, must be living separate from the father. But that is no reason why he should not maintain them.

If he wishes them to live with him, his obvious course is to get an order from the proper authority giving him the