The right of children to claim maintenance from their father under Section 488, Cr. P. C., is independent of the mother's right to maintenance and cannot be affected by the fact that the mother has been divorced or is not of a virtuous character.

I. N. MODI, J.

( 1 ) THIS is a reference by the Additional District Magistrate, Jodhpur, in a matter under Section 488, Cr. P. C. , and arises under the following1 circumstances.

( 2 ) PETITIONER No. 1 Mst. Bashiran is allegedly the wife of the opposite party Nathu. The latter has had two children by Mst. Bashiran: (1) Mst. Banu a daughter aged about seven years and (2) Allahbux a boy about four years and a half, who are petitioners Nos. 2 and 3. On 17-7-1958, Mst. Bashiran, applied to the Extra First Class Magistrate No. 3, Jodhpur City, that she and the opposite party Nathu had been married about 20 years ago but the latter had married another woman named Fatma about four years ago, and, therefore, she wanted to live separately from her husband. It was also alleged that the opposite party did not care at all for her or for her children, and, therefore, she claimed maintenance under Section 488 Cr. P. C.

( 3 ) THE opposite party Nathu resisted this application. His case was that he had divorced Mst. Bashiran on 16-4-1958, and, therefor, no marital tie subsisted between them, and, therefore, he was not bound to maintain her. He also contended that she had started living separately from him right from 1954 without any rhyme or reason and thereafter at his request came back once but again left him and completely declined to live with him. As regards the two children, his case was that he had asked his former wife to send both the children to him but she flatly refused to do so. He also submitted that he was prepared to keep the children with him and maintain them but if Mst. Bashiran would not send them to him, he was not liable to pay for their maintenance to suit her convenience.

( 4 ) THE learned Magistrate found that the opposite party had divorced Mst. Bashiran in the presence of a Panchayat which had been called to settle the differences between them. The Magistrate, therefore, ordered on 27-2-1959 that she was entitled to maintenance for the period of Iddat only and not thereafter. Having regard to all the circumstances of the case, he ordered that the opposite party shall pay maintenance to Mst. Bashiran at the rate of Rs. 15/- P. M. and to her two children at the rate of Rs. 10/- P. M. for the period of Iddat and further allowed a period of 15 days for the aforesaid payment in default whereof he directed that his order shall be enforced in accordance with subsection (3) of Section 488 Cr. P. C.

( 5 ) AGGRIEVED by the above order, the petitioners preferred a revision to the Additional District Magistrate, Jodhpur, who has made the present reference. The only point which seems to have been pressed before the learned referring Magistrate, however, was that the trial Magistrate had fallen into error in allowing maintenance to the minor children only up to the period of the Iddat, and that he should have passed an order for their maintenance until they were able to earn their livelihood. The recommendation of the learned Additional District Magistrate is that the two petitioners Mst. Banu, and Allahbux are entitled to maintenance allowance until they attain the age of majority.

( 6 ) THE question which thus emerges for determination is whether the two children are entitled to maintenance from their father when they are living with their mother, and the latter is not prepared to send them to their father.

( 7 ) NOW the object of Section 488 is to prevent vagrancy by compelling the husband or the father to support his wife or children who are unable to support themselves. It is, therefore, well-established that the powers of the criminal courts under this chapter are limited in scope and the orders passed thereunder are subject to any final adjudication which may be made by a civil court as respects the civil rights of the parties. At the same time, the right to maintenance under this section is a distinct statutory right which is capable of being enforced provided the conditions precedent laid down by Section 48