A court has the power to grant maintenance for a child of a different gender than the one mentioned in the petition under Section 488 of the CrPC, if the court is satisfied that the inconsistency is an inadvertent mistake and that the child is unable to maintain itself.

ORDER

The petitioner in this revision, who was the opposite party in the court below, has been directed to pay Rs. 20/- p.m. towards the maintenance of a child born to the opposite party, who was the petitioner in the court below. The said child, as found by the court below, was born to the opposite party through her union with the petitioner.

2. Mrs. Padhi, the learned counsel for the petitioner mainly contended that the court below was legally not justified in granting maintenance for the child as in the petition under Sec. 488, Criminal P.C. filed in the court below by the opposite party, maintenance was claimed for a female child, whereas the opposite party in her deposition in the court below claimed maintenance for a male child. Mrs. Padhi in this connection contended, that the relief given under Section 488, Criminal P.C. being of a civil nature the petition in the court below is in the nature of a plaint in a civil suit, and the claim made therein being for the maintenance of a famale child, the court was not legally competent to grant maintenance for a male child on the deposition of the opposite party in the court below. To support her above contention she cited the decision in AIR 1960 SC 882 in which their Lordships, while discussing the question as to whether in a proceeding under Section 488, Criminal P.C. the Magistrate has the power to make a preliminary enquiry before issuing notice to the opposite party, observed :-

"The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate."

Their Lordships' above observations connote the nature and the scope of a proceeding under S. 488, Criminal P.C.

An application under Section 488, Criminal P.C. is not a complaint within the meaning of Section 4(c) of the Code, and a person against whom such an application under S. 488, Criminal P.C. is made is not charged with and tried for any offence, and so he is not in the position of an accused in such a proceeding. It is well settled that the imprisonment prescribed under Section 488(3), Criminal P.C. is not a punishment, but is merely a means of enforcing the payment of the maintenance ordered by the Court. That is why the relief given under Chapter XXXVI is considered to be of civil nature. But all the same the proceedings under the said Chapter are not civil proceedings so as to attract the provisions of the Civil P.C. as the said proceedings are wholly governed by the provisions of the Criminal P.C. That being so the provisions of Orders VI, VII and VIII, Civil P.C., relating to pleadings in a civil suit, do not apply to a petition under S. 488, Criminal P.C.

Mrs. Padhi, in spite of her best efforts, could not cite any decision in support of her contention to the effect that the petition under S. 488, Criminal P.C. is in the nature of a pleading in a civil suit and as such relief can only be given in strict accordance with the particulars stated therein. Strict provisions have been made under Orders, VI, VII and VIII of the Civil P.C. for signing, verifying and stating all the necessary particulars in the pleadings in civil suit, and as such lot of importance is attached to the averments and the particulars stated in such pleadings. Even in spite of such strict provisions, these pleadings, and specially those coming from the Muffosils, are not construed very strictly. Moreover a petition under Section 488, Criminal P.C. is not required under the law to be signed and verified in the manner prescribed under the Civil P.C. No doubt if there be statement in the nature of admission in such a pe