CHAMALA PADMAMMA CHAMALA SWARNA Vs. CHAMALA NARSI REDDY
HIGH COURT OF ANDHRA PRADESH
CHAMALA PADMAMMA, CHAMALA SWARNA
CHAMALA NARSI REDDY
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(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.
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