BALBIR SINGH Vs. HARDEEP SINGH

JUDGEMENT

(1.) DALIP Kaur, wife of Hardeep Singh, respondent, and their two sons, Balbir Singh and Kartar Singh, filed an application under Section 488, Criminal P. C. , 1898, in the Court of the Judicial Magistrate 1st Class. Barnala, claiming maintenance on the ground that the respondent had refused to fulfil his obligation to maintain them. The application was contested by Hardeep Singh on the plea that Dalip Kaur had left his company without any justification and that he had never refused to maintain the applicants. On coming to the conclusion that the applicants had failed to establish refusal or neglect on the part of the respondent, the learned Judicial Magistrate dismissed the application by order dated August 7, 1969. Being aggrieved, the applicants filed revision petition in the Court of the Sessions Judge, which was disposed of by the Additional Sessions Judge, by order dated November 24, 1970. By this order, the learned Additional Sessions Judge has made a reference to this Court for quashing the order of the learned Judicial Magistrate so far as the two sons of the respondent are concerned and it is recommended that their application under Section 488 of the Code be accepted and they be granted maintenance allowance at the rate of Rs. 50.00 per month each.

(2.) THE revision petition first came up before Tewatia, J. , who finding that some of the observations in Abnash Chander Ram v. Soshila Devi ,, AIR1962 P&h 274 , needed reconsideration, referred the matter to a larger Bench. The petition was then placed before a Division Bench and during arguments, it was noticed that there was serious conflict of authorities in respect of the main question that needed consideration in this case. Finding that the matter could be properly dealt with by a larger Bench especially as the ratio of the decision in Man Singh v. Mst. Dhara -mon 1894 Pun Re 18, was under challenge, it was referred to Full Bench. It is in this manner that the case is before us for decision of the following question: Whether the minors are entitled to claim maintenance from their father even if they are in custody of the mother and the father has moved the guardian Court for obtaining their custody. The decision of the above question calls for the interpretation of Section 488. Code of Criminal Procedure, 1898, the relevant portion of which is set down below for facility of reference: 488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. (2 ). . . (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him. such Magistrate may consider any grounds of refusal stated by her. and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

(3.) THE learned Counsel for the respondent, on the other hand, contends that where a father offers to maintain the children on the condition that they live with him, it cannot be held that he has refused to maintain them unless there are circumstances to show that notwithstanding such an offer the father has neglected to maintain the children.