Jagat Narayan, J. - (1.) THIS is a revision application against an order of the Sub Divisional Magistrate, Hanumangarh, refusing to grant maintenance to Smt. Gurdeo Kaur alias Surjit Kaur and her daughter Mahendra Kaur in proceedings under Sec. 488
(2.) SMT. Gurdeo Kaur was married to Balbir Singh respondent. She was turned out by Balbir Singh from his house about a year before the present application for maintenance was filed in the court of the Sub Divisional Magistrate on 29. 5. 56 claiming Rs. 100/- per month as maintenance for herself and her daughter aged 4 years. In this application it was alleged that she was married to Balbir Singh 7 years before, that a daughter was born to her 3 years after her marriage and that a year before filing the present application her husband started ill-treating her and turned her out of his house after giving her a beating. It was alleged that the illtreatment of the husband was due to the influence of his parents who were not pleased with her. Further it was alleged that Balbir Singh married another woman about two months before the filing of the application. Maintenance was claimed at the rate of Rs. 100/- per month for herself and her minor daughter. The application was resisted by Balbir Singh. He alleged that she became unchaste about two years ago having contracted intimacy with one Raja Singh and he divorced her as she persisted in her unchaste conduct in accordance with the custom prevailing in his community. As for the child his case was that he was willing to maintain her and was taking steps to obtain her custody. ' The case put forward by the applicant in court was that her husband began to illtreat her because her father being poor was not able to give such valuable presents on the birth of her daughter as her husband and his parents expected. Balbir Singh denied having illtreated his wife. The case which was put forward in evidence was that she was seen going into the house of Raja Singh at midnight by one Umaria Kumbhar alias Umruddin, that on being rebuked by her husband she promised to behave properly in future, that she nevertheless persisted in her unchastity and was seen by Balbir Singh sitting on the same cot with Raja Singh and when the husband asked her why she was again behaving in that way in spite of her previous promise she told him that she was in love, with Raja Singh and could not leave him. At this her father Mala Singh was called and a Panchayat was held in the village. A charge of adultery was brought against Smt. Gurdeo Kaur before the Panchayat and was proved. She was then divorced in the customary way by covering her head with a white cloth. Thereafter her father took her away with himself to his house saying that he would marry her elsewhere. The learned Sub Divisional Magistrate found that the facts alleged on behalf or Balbir Singh were true. He was however not satisfied that the custom of divorce by covering the head of the woman with a white cloth had been satisfactorily established. He held that the charge of adultery brought against her was proved satisfactorily from the evidence on record. He did not believe the allegation made on behalf of Smt. Gurdeo Kaur that Balbir Singh illtreated her. On this finding he declined to grant maintenance to Smt. Gurdeo Kaur for herself. As for the child he held that Balbir Singh was willing to maintain the child, provided she came to live with him and as Smt. Gurdeo Kaur refused to part with the child he did not grant any maintenance to her on account of the child. Against the above order an application was made to the Additional Sessions Judge, Ganganagar under sec. 435 Cr. P. C. The learned Additional Sessions Judge reviewed the evidence as if the matter had come up before him on appeal. The findings to which he arrived by this process were that the charge of adultery had not been proved but that the divorce according to custom had been satisfactorily established. He accordingly held that Smt. Gurdeo Kaur was not entitled to any maintenance. As for the child he held that as the father was ready to keep it with himself no maintenance allowance could be granted to Smt. Gurdeo Kaur for maintaining the child. He accordingly dismissed the application. The first contention on behalf of the applicant is that the learned Sessions Judge erred in holding that the divorce in accordance with the custom had been satisfactorily established. The order which has to be considered in the present application is the order of the S. D. M. and not the order of the learned Additional Sessions Judge. The learned S. D. M. was not satisfied that the alleged custom of divorcing by covering the head with white cloth has been established. This finding cannot be said to be unreasonable upon the evidence on record. It cannot be interfered with in revision. The next contention is that the learned Sub-Divisional Magistrate erred in holding that the case put forward by Balbir Singh had been established from the evidence on record. I have perused the record and I am satisfied that there is sufficient evidence justifying the finding of fact arrived at by the learned Magistrate. Smt. Gurdeo Kaur was the first witness who was examined in this case with regard to the material facts. She stated in examination-in-chief that Balbir Singh left her after covering her head with a white cloth (Dhola urba kar chhor dia) and after that he married another woman. She admitted that before she was turned out by Balbir Singh a Panchayat was held at which her father Mala Singh and her uncle Jogendra Singh along with several other persons representing her side were present She said that she did not appear before the Panchayat and could not say what charge was brought against her before the Panchayat. Her father Mala Singh denied that there was any Panchayat. Jogendra Singh admitted that there was a Panchayat before his niece was turned put by her husband but alleged that before the Panchayat no reason was given why Balbir Singh was turning out his wife. This is unbelievable. Raja Singh and Umria Kumar alias Umruddin were examined in support of his case by Balbir Singh. Raja Singh stated that he had illicit intimacy with Smt. Gurdeo Kaur. Umaria Kumbhar stated that he saw Smt. Gurdeo Kaur entering the house of Raja Singh at about mid-night and closing the door from inside. The learned Magistrate believed the evidence of Balbir Singh, Umaria Kumbhar and Raja Singh. Raja Singh is a distant relative of Balbir Singh. That however does not render the allegation of his illicit intimacy with Smt. Gurdeo Kaur wholly improbable. There is evidence on record to show that Umaria Kumbhar was called before the Panchayat and he gave evidence before the Panchas about the above fact which he had seen with his own eyes. No convincing explanation is forthcoming as to why Balbir Singh should have falsely attributed adultery to his wife before the Panchayat. On the basis of the evidence on record the learned Magistrate could have reasonably inferred that the charge of adultery brought against Smt. Gurdeo Kaur had been substantiated. The finding of fact arrived at by the learned Magistrate is thus not open to attack in the present proceeding. Next it was argued that all that had been proved was some 'stray' act of adultery which cannot disentitle Smt. Gurdeo Kaur from being awarded maintenance from her husband. Reliance was placed on Subramaniyam vs. Ponnakshiammal (1) and the other decisions referred to therein. It has no doubt been held that it is only a continuous life of adultery subsisting till the date of the application that disentitles the wife to maintenance under sec. 488 (4) Cr. P. C. In Ma Mya Khin vs. N. L. Godenbo (2) it was held that the words "living in adultery" mean that the woman must be living in a state of quasi permanent union with the man with whom she is committing adultery. In re Fulchand Maganlal (3) in interpreting the material words "living in adultery" reliance was placed on the following observation of Justice Chandavarkar made in the case of Parami vs. Mahadevi (I. L. R. 34 Bom. , 278); - The general rule to be gathered from the texts is that a Hindu wife cannot be absolutely abandoned. If she is living an unchaste life, he is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life. The Hindu Law has since then undergone a change. The wife's right to maintenance is now regulated by the Hindu Adoptions and Maintenance Act, 1956, sec. 18 (3) of which provides that a Hindu wife shall not be entitled to maintenance from her husband if. she is unchaste. Even under the law as it stood before this enactment an unchaste Hindu wife was only entitled to "starving" maintenance that is food and raiment just sufficient to support her life provided she was willing to live in her husband's house under restraint. The wordings 'living in adultery' no doubt indicate a continuous course of conduct. The learned Magistrate has held that Smt. Gurdeo Kaur "began to live in adultery. She was several times asked to take sense and give up her vicious life, but she persisted. She was (seen in adultery with one Raja Singh S/o Daman Singh". Even if it be taken that this amounted to a finding that she was living continuously in adultery she left the house of her husband about a year before the present application was filed and there is no evidence on record to show that she continued to live in adultery upto the date of the application. The case therefore does not fall strictly within the ambit of clause (4) of Sec. 488 Cr. P. C. But the use of the word 'may' in the opening clause of sub sec. (1) of sec. 488 Cr. P. C. shows that the Magistrate may in his discretion refuse to grant maintenance in appropriate cases not covered by sub-sec. (4 ). This discretion has of course to be exercised judicially. It would have been a proper exercise of his discretion on the part of the Magistrate to refuse to grant maintenance to Smt. Gurdeo Kaur on the ground that she had become unchaste and persisted in her unchastity even after her unchastity had come to light. I therefore decline to interfere with the order of the learned Magistrate refusing to grant maintenance to Smt. Gurdeo Kaur even though the order was based on sub-sec. (4) to sec. 488 Cr. P. C. which is not strictly applicable. Coming now to the question whether Smt. Gurdeo Kaur is entitled to claim maintenance for her daughter the contention on behalf of the applicant is that the Magistrate was not justified in refusing to grant maintenance for the child on the ground that Smt. Gurdeo Kaur was not willing to deliver her in the custody of her husband who was willing to keep her with himself and to maintain her. Reliance was placed on a single judge decision of the Hyderabad High Court in Rahimunnissa vs. Mohd. Ismail (4) It was held that a child does not stay away by his own choice and he cannot be deprived of his right of maintenance because his mother refuses to give him in his father's custody. This case is distinguishable as the parties to it were Mohammedans under whose personal law the mother is entitled to the custody of children. In the present case the parties are governed by the Hindu Law under which the father is entitled to the custody of his minor children. Apart from any consideration of personal law a right to maintenance under sec. 488 Cr. P. C. only accrues upon proof of neglect or refusal to maintain. Where the father is willing to keep his child with himself and to maintain him it cannot be said that there is any neglect or refusal to maintain the child and the person having the custody of the child is not entitled to claim maintenance for him. I am fortified in this view by a division bench decision in Man Singh vs. Dharmod reported in (1849) 18 Punjab Records Criminal Judgment No. 18 which was followed by the Lahore High Court in Ralla vs. Mst. Atti (5) and Sultan vs. Mabtab Bibi (6 ). The learned Magistrate therefore rightly refused to grant maintenance allowance for maintaining her daughter to Smt. Gurdeo Kaur.
(3.) I accordingly reject the application. .;