The minor child in the custody of the mother is entitled to maintenance allowance from the father, even though the mother has deserted the husband without reasonable cause and refused to go back to him.

P.N. Bakshi, J.

1. THIS revision involves a very interesting question of law. Smt. Qaiser Jahan Begam is admittedly the wife of Rizwan Ullah Khan. After their marriage she performed her marital obligations at the residence of her husband in village Hasanpur Luhari, Police Station Thana Bhawar, district Muzaffarnagar. On 28-1-1977 she filed an application under Section 125 CrPC in the court of the first class Magistrate Kairana praying for maintenance of Rs. 200/- per month from her husband Rizan Ullah Khan. She alleged that her husband was a gambler, a vegabond and liquor addict. When she asked him to give up these bad habits she was ill-treated and beaten and thereafter, while she was ill he left her at her father's place in village Hasanpur Luhari. A year prior to the filing of the petition she had also given birth to a daughter begotten of her husband. She alleged that her husband had failed to maintain her as well as her child. She had no means to make both ends meet. Hence she prayed for maintenance allowance of Rs. 200/- per month.

2. THE applicant denied his liability to pay maintenance. He denied that the was addicted to liquor, gambling or to have mixed in bad company. He also denied having ill-treated his wife or to have turned her out of his house. He pleaded that as the marriage of his brother-in-law was fixed on 22nd June 1976 his wife had voluntarily gone to her father's place, a few days in advance, to attend the marriage and she had carried all her ornaments with her. Since then inspite of his best efforts his wife has refused to come back and to live with him with the child. He stated specifically that he has always been willing to bring his wife home and he was still prepared to do so. As for his income he alleged that it was only Rs. 150/- per month.

The Sub-Divisional Magistrate came to the conclusion on appraisement of the evidence on the record that Shrimati Qaiser Jahan Begam has not been able to prove that her husband illtreated her and left her at her father's place. She had also failed to prove that he had neglected or refused to maintain her. The trial court, therefore, did not grant any maintenance allowance to the wife. But the Magistrate directed the applicant to pay a sum of Rs, 150/- per month as maintenance for his daughter, aged about 1 1/2 years. Aggrieved thereby a revision was filed before the Sessions Judge, Muzaffarnagar by Rizwan Ullah Khan. The Sessions Judge was of the opinion that since the husband was prepared to take back his wife and to maintain her, as well as the child and since the wife had refused to live with her husband, there would be no justification in burdening the husband with the liability to pay the maintenance for her child. As to the quantum of the maintenance for the child, he was also of the opinion that, having regard to the income of the husband, the appropriate maintenance allowance, would be Rs. 100/- per month for the child, In this view of the matter, the Sessions Judge, Muzaffarnagar allowed the revision by the husband and set aside the order passed by the Magistrate directing payment of Rs. 150/- to Shri- mati Qaiser Jahan Begam as maintenance allowance for the child. Aggrieved, thereby Shrimati Qaiser Jahan Begam has filed this revision.

3. I have heard learned counsel for the parties at considerable length and have also perused the impugned order. The question of law which arises for consideration in the instant case is whether the minor child in the custody of the mother would be entitled to maintenance allowance, inspire of the fact that the mother does not live with her husband and fails to discharge her marital obligations without sufficient cause. In other words, is the husband liable to maintain his minor child in the custody of his wife, whom he has neither neglected nor failed to maintain, Section 125 Cr. P.C. (new) runs as follows :

"125 (1). If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to main