- (1.) THIS is a reference by the Additional Sessions Judge of Ganganagar. It came up for hearing before a single Judge of this court and as there was some difference of opinion in two single Bench decisions of this Court on a point of law, he has referred this case to a Division Bench.
(2.) THE facts of the case are that the applicant Mst. Rukma is legally wedded wife of Shri Laduram. She was married about 24 years ago. She gave birth to eight children, but only two of them survived, who are daughters. Out of the two daughters, one is said to have been married and the other is minor of about thirteen years. Mst. Rukma's case is that she was beaten and turned out of the house by her husband about four months before the date on which she made an application for maintenance, but after a Panchayat her husband again took her back, and he again repeated the same behaviour and turned her out about a week before the date of her application. She further stated that when her husband was again approached by a Panchayat, he refused to maintain her or to take her back in his house. She stated that the income of her husband was about fifty thousand rupees per annum and she claimed a sum of Rs. 500/- per mensem for the maintenance of self and her daughter Her husband contested the petition and he stated that his wife had abandoned his house without his permission and that he did not turn her out or ill-treat her. He admitted that his income was about Rs. 15,000/-per annum. He also admitted that he had married a second wife about eight years ago and that he had a son from his second wife. The first class Magistrate, Ganganagar, after holding an inquiry, held that it was proved from the testimony of Mst. Rukma and her witnesses P. W. 2 Chetram, P. W. 3 Kashiram and P. W. 4 Magharam that the husband of the petitioner refused to maintain her or to keep her in his h0use. The learned Magistrate also held that Mst. Rukma was entitled to live separately from her husband for the reason that he had taken a second wife. Having regard to the circumstances of the case, the Magistrate held that an amount of Rs. 300/-P. M. should be allowed as maintenance to the petitioner and her daughter. Laduram went in revision to the Additional Sessions Judge of Ganganagar, who has made this reference. In the opinion of the learned Judge, an amount of Rs. 300/- P. M. is a little more than necessary. He recommended that the sum of Rs. 300/- be reduced by Rs. 100/- and a sum of Rs. 200/-per month be allowed as maintenance both of Mst. Rukma and her daughter at the rate of Rs. 100/- per head. When the case came up for hearing before Single Judge of this Court, two authorities were cited before him. One is Smt. Gurdeokaur Vs. Balvir Singh (1 ). In that case it was held that where a father was willing to keep his child with himself and to maintain him, it was not a case of refusal or neglect to maintain and application for maintenance of the child was, therefore, dismissed. The second case is Mst. Bashiran and others Vs. Nathu (2 ). In that case it was held that a child cannot be deprived of his right to maintenance under sec. 488 of the Criminal Procedure Code because the mother refuses to give him under the custody of his father. The decisions in the aforesaid cases are not consistent with each other and the case has, therefore, come up before us. It has been argued on behalf of Laduram that it was not proved by evidence that he refused or neglected to maintain his wife or his daughter and that the order passed by the Magistrate for their maintenance was, therefore, not proper. It was urged that Laduram was always prepared to keep his wife and daughter with him and to maintain them. The counsel on the opposite side has replied that the finding of the Magistrate on the point of Laduram's refusal or neglect to maintain his wife and daughter was based on good evidence and there was hardly any reason for Laduram to challenge the findings of the Magistrate before this Court. It was also urged that the learned Additional Sessions Judge was not right in assessing the amount of compensation at Rs. 200/'-per month only when the Magistrate, who held the inquiry, fixed the amount at Rs. 300/- having regard to the circumstances of the case. It may be noted that under sec. 488 of the Criminal Procedure Code, maintenance can be granted to a wife or legitimate or illegitimate child if it is established (1) that any person having sufficient means (2) neglects or refuses to maintain his wife or his legitimate or illegitimate child, unable to maintain itself. If these conditions are satisfied, an order for maintenance can be passed. The maximum amount of maintenance that can be granted under sec. 488 Cr. P. C. is a sum of Rs. 500/- per month. It is an admitted case of both the parties that Mst. Rukma is the married wife of Laduram and that Mst. Sharbati is their daughter. The daughter is minor and is of about 13 years. Mst. Rukma refuses to live with her husband for the reason that he has taken a second wife and her grievance is that he does not treat her well. Under sec. 488 (3) Cr. P. C. a wife is entitled to live separately from her husband for the reason that the husband keeps a mistress. Having regard to the provisions of Sub- sec. (3) to sec. 488 the husband under the circumstances of this case cannot make it a condition for allowing maintenance to his wife that she should live with him. Ladu Ram, therefore, cannot be allowed to take up the position that he would pay maintenance only on the condition of her living with him. The testimony of Mst. Rukma and P. W. 2 Chetram and P. W. 4 Magharam which has been believed by the learned Magistrate is sufficient to prove the fact that Laduram refused to give maintenance to Mst. Rukma and her daughter and he also refused to keep them in his house. The learned Magistrate has also referred to the testimony of P. W. 3 Kashiram, but he is not a witness to the Panchayat which is alleged to have been convened a second time. He was a witness to the first Panchayat, after which the husband and wife reconciled their differences and Mst. Rukma went and lived with her husband. The dispute again arose a second time and P. W. 2 Chetram and P. W. 4 Magharam are the witnesses of the second Panchayat in which Laduram is said to have refused to keep Mst. Rukma with him or to give her maintenance. The learned Additional Sessions Judge has not gone into this point. The learned counsel of Laduram has challenged the finding of the Magistrate on this point and has urged that it should be held by this Court that Laduram did not refuse or neglect to maintain his wife or his daugther. The learned counsel has made the offer that if his wife and daughter return to the house of Laduram, he would be prepared to maintain them. Such an offer made during the proceedings of an application under Sec. 488 of the Criminal Procedure Code cannot be a bonafide one when their is evidence to show that Laduram refused to maintain his wife and daughter, when he was approached by a Panchayat after a dispute arose between the husband and the wife. We do not think there is reason for this Court to interfere in the finding of the learned Magistrate on this point. The contention that no maintenance should be granted to the daughter as she refuses to live with her father, who is her natural guard an, cannot be regarded as sufficient to discharge the liability of the father to maintain her. It is a question of fact to be decided in each case whether the husband or the person having sufficient means neglects or refuses to maintain his wife or his legitimate of illegitimate child unable to maintain itself and no hard and fast rule can be laid down for determination of such a question of fact. Having regard to circumstances of this case, Mst. Rukma cannot be forced to go and live with her husband when the husband has another wife living with him and she cannot be deprived of her right to maintenance on the ground that she refuses to go and live with her husband. As regards Mt. Sharbati, Laduram insists that she should come and live with him and he undertakes to maintain her on that condition. We are told that Laduram filed an application for the custody of Mst. Sharbati in the court of the Civil Judge, Ganganagar and his application was dismissed on the ground that in the opinion of the learned Civil Judge, it was in the interest and for the welfare of the minor to stay with her mother. Having lost his case in a Civil Court, Laduram cannot now make it a condition that Mt. Sharbati should return to his house and that he would maintain her only on that condition. The right of a child for maintenance does no: depend on the condition of the child living with the father. Under Sec 25 of the Guardians and Wards Act, it is in the discretion of the Civil Court to order return of the custody of she minor to her natural guardian, provided such an order is for the welfare of the minor. In the instant case, the civil court went into this question and thought it fit not to allow the father to have custody of the minor for the reason that such an order could not be for the welfare of the minor. Thus the contention that has been raised on behalf of Laduram cannot be considered to be proper. Having failed in a Civil Court, he cannot reagitate the same question over again. Laduram cannot refuse to maintain his daughter and he cannot make it a condition for giving maintenance to his daughter to return to his custody. The decision in Gurdeo Kaur's case (1) referred to above is distinguishable on the ground that in the instant case application for custody of the minor has already been dismissed and it his been held that it is for the welfare of the minor to live with her mother. In that case no such decision by a civil court was given before the decision of an application under sec. 488 of the Criminal Procedure Code. Moreover, refusal or neglect to maintain is a question of fact and a finding thereon has to be given having regard to the circumstances of each case. Coming to the question of quantum of maintenance, it may be noted that the learned Additional Sessions Judge has not given any reason why he thought a sum of Rs. 300/-to be more than called for. The learned Magistrate must have taken into account the status of the parties and all other circumstances having a bearing on the point of fixing the quantum of maintenance. We do not think it would be proper to interfere into the order of the Magistrate without good reasons. We would, therefore, refuse to interfere in the order of the Magistrate and dismiss the reference. Counsel for Laduram prays for leave to appeal to the Supreme Court, but we do not think it is a fit case for granting leave to appeal for the reason that it is open to the parties to invoke the jurisdiction of a civil court. . ;