Dave, J. - (1.) THIS reference comes on the report of the learned Sessions Judge, Udaipur, dated 19. 12. 58, whereby he has recommended to this Court that. the order passed by Munsif-Magistrate Salumber dated 30. 8. 58 directing Mst. Dhulki to pay allowance for the maintenance of a girl aged about 3 months should be set aside.
(2.) IN order to appreciate the points involved in the reference, it would be proper to state briefly the facts which have given rise to it. It appears from the perusal of the record of the Magistrate's court that on the 30th Nov. 1957 a girl aged about 1-1/2 months was found lying in a jungle by P. Ws. Savji and Punja. P. W. Punja presented that child before the Gram Panchayat Semari; whereupon P. W. Kishanlal Serpanch handed over the said child to the care of P. W. 3 Welki and reported the matter to the police. After investigation, the police came to the conclusion that the child was born of Mst. Dhulki and that Mst. Dhulki had deserted that child since it was illegitimate. Mst. Dhulki was prosecuted for committing an offence u/s 317 I. P. C. The Munsif-Magistrate Salu-mber, who made an inquiry into the case, discharged Mst. Dhulki of the said offence on 30. 1. 58. After about 12 days, he drew up another order on 13. 2. 58 and initiated proceedings against Mst. Dhulki under sec 488 Cr. P. C. , He also initiated proceedings against one Kamjida Who was suspected to be the father of that illegitimate child. Both Kamjida and Mst. Dhulki disowned the child as their own. The Magistrate, however, came to the conclusion that it was Mst. Dhulki, who had given birth to that child and so he directed her to pay maintenance at the rate of Rs. 4/- p. m. for a period of 5 years, Rs. 5/- p. m. for the next 2 years and Rs. 6/- p. m. for the next 3 years. Kamjida was discharged of the liability to pay any maintenance for the child. Against the said order dated 30. 8. 58 Mst. Dhulki filed a revision application in the court of the learned Sessions Judge, Udaipur. The learned Sessions Judge came to the conclusion that it was not proved from the evidence on record if it was Mst. Dhulki who had given birth to that child, that the Magistrate had based his findings on conjectures, and, therefore, he has recommended that his order should be set aside I have gone into the record of the case and I find that the order of the Magistrate cannot be maintained on more than one grounds. In the first place, the Magistrate had no authority to initiate proceedings under sec. 488 Cr. P. C. suo-moto since that section contemplates an application for maintenance either by the aggrieved wife or by one who is incharge of the neglected child. Secondly, the perusal of sec. Cr. P. C. shows that the court can direct either the husband of the neglected wife or the father of the legitimate or illegitimate child to pay maintenance allowance, but it does not contemplate any order against the mother for the maintenance of the child. This is clear from the wordings of subsec. (l) of sec. 488 Cr. P. C. , which runs as follows: - " (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 District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a 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". It is clear from the language of above sub-section that the person against whom an order may be passed must be a person who has sufficient means and who still neglects or refuses to maintain his wife or his legitimate or illegitimate child. Then a reference to sub-sec. (6) of sec. 488 Cr. P. C. would further show that it requires that all evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be. This makes it still clearer that the action contemplated by this section is only against the husband or the father and not against the mother. The third reason on account of which the Magistrate's order [cannot be maintained is that he has nowhere arrived at the finding if Mst. Dhulki had sufficient means to maintain the child. Lastly, his finding to the effect that it was Mst. Dhulki who had given birth to that child is based on mere surmises and there is no convincing evidence to show if that child was begotten by Mst. Dhulki. Even Mst. Johiti who is said to have worked as a nurse at the time when Mst. Dhulki is said to have given birth to another child, has not been able to say if it was the same child or a different one. According to the report which was made by Punja on 30. 11. 57 when he found the child in the jungle, the child was about 1-1/2 months old. If Mst. Dhulki had given birth to this child, it should have been seen in her care during the last l-1/2 months, but there is no evidence to that effect either. The learned Sessions Judge is thus right in saying that the finding of the Magistrate is not based on any evidence. The reference is, therefore, allowed and the order of the Magistrate dated 30. 8. 58 is set aside. .;