The statutory duty of the father to maintain the child and the court's duty to inquire into the reasons for the refusal of the wife to live with the husband are central legal principles established in the judgment.

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.

4. The Magistrate has also taken an erroneous view of the matter that because the wife has refused to live with the husband therefore, she is not entitled to claim any maintenance. It is true that a wife will be dis-entitled to claim maintenance from the husband if the wife, when an offer is made to her to live with the husband unreasonably refuses to do so. If she, however pleads some reasonable ground and refuses to live with the husband on that ground, then it is the duty of the Magistrate to go into the question of refusal and find out the reasonableness of the ground. If the ground is reasonable, then the question of offer loses all its significance and importance and the Magistrate cannot refuse the grant of maintenance on that ground. It is only when the ground urged by the wife is found either unreasonable or untenable that she is disentitled to claim maintenance. But nevertheless, a duty is cast upon the court to make an enquiry and find out the reasons for refusal to live with the husband.

5. The result is that the order of the Magistrate is hereby set aside. In so far as the child is concerned, it is ordered that the respondent will pay a monthly allowance of Rs. 40/- as recommended by the learned Sessions Judge on the basis of the evidence on the record. This the respondent will pay from the date of the application. In so far as the claim of the wife is concerned, the Magistrate will make an enquiry into the circumstances of the refusal of the wife to live with the husband, and thereafter proceed with the case and pass appropriate orders in the case in the light of the observations made above.

The reference is accordingly accepted.

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