- (1.) On an application filed by the wife and the three and half year old child of a person for maintenance under S. 488 Cr. P. C. the learned First Class Magistrate of Bhongir held that the wife with the child had voluntarily left the husband without sufficient reason and that consequently there was no neglect or refusal on his part to maintain the wife or child. The application for maintenance was therefore rejected. On a revision petition filed by the wife and child the learned Sessions judge of Nalgonda confirmed the finding of the learned Magistrate that it was the wife along with the child that left the husband without any sufficient reason. He thought that the finding, while it was sufficient to negative the wife's claim for maintenance, was not sufficient to reject the child's claim; He has therefore made this reference under S. 438 Cr. P. C. recommending that maintenance may be awarded to the child. I agree with the learned Sessions Judge.
(2.) A wife and a child seeking maintenance under S. 488 do not stand on the same footing; A wife has a volition and discretion of her own ; a child has none. A wife cannot refuse to live with her husband without any sufficient reason. If she does, under sub-section (4)of Section 488, she will be disentitled to claim maintenance. On the other hand, there is no question of the child refusing to live with her father since she has no free choice in the matter. She stays where she is and if the father is dissatisfied with the custody of the child it is open to him to seek the custody of the child in an appropriate proceeding. But maintain the child, he must, wherever she is If he says I am ready to maintain the child but she must come to me, then there is a refusal or neglect to maintain the child. He cannot claim the custody of the child in a proceeding under S. 488 Cr. P. C A criminal Court deciding a claim under S. 488 Cr. P C is hardly an appropriate forum for deciding questions relating to the custody of the child. Therefore the rejection of a wife's claim to maintenance on any ground whatever cannot affect the child's claim to maintenance. These principles are well settled and there is a general consensus amongst the various High Courts : Vide Kuppala Kristappa v Preemateelamuim Muniammal v. Venkataramanachan State v. M T. Anwar Bi Abnash Chander v. Soshila Devi and Sribataha v. Padma, Sri K. Pratap Reddy, learned counsel for the respondent urges that mere omission or failure cannot be treated as 'neglect or refusal' and refers me to Stroud's Judicial Dictionary (3rd Edition) Volume III, Page 2505 where it is said, "To 'refuse or neglect'-is not equivalent to 'fail or omit' as it implies a conscious act of volition". I do not agree with Sri Pratap Reddy's submission. A father is under a duty to seek his child wherever she is and maintain her. His very insistence, in the proceeding under S. 488 Cr. P. C , that the child should go back to him is sufficient to constitute neglect or refusal for the purposes of S. 488 Cr P. C.
(3.) The reference is therefore accepted, the order of the learned Magistrate refusing to award maintenance to the child is set aside and it is declared that the child is entitled to be granted maintenance Since there is no finding by either of the lower Courts on the question of quantum of maintenance, the matter is remitted to the Magistrate to determine the quantum of maintenance to be awarded and make an appropriate order.;