Madan Mohan Prasad, J.:— This application is directed against an order passed under Section 488 of the code of Criminal Procedure granting maintenance to the wife and children of the petitioner, Israfil Mian.

2. The petitioner's wife, Bibi Taibunnisa, filed an application before the Magistrate alleging that she was the legally married wife of the petitioner and had been living along with her two children, a son and a daughter, but the petitioner had some illicit relations with another woman and wanted to marry her and on account of that she was turned out of the house along with her two children and that the petitioner refused and neglected to maintain her. She, therefore, claimed maintenance for herself as well as her two children, to the extent of Rs. 100/- for herself and Rs. 150/- for the children, alleging that the petitioner was a man of means having landed properties and getting a monthly income of Rs. 300/- by working in a dockyard at Calcutta.

3. The petitioner, who was the opposite party before the Magistrate, admitted that Taibunnisa was his wife and the children were his but alleged that his wife had illicit connection with one Md. Hasnain and had even become pregnant by him, on which he had divorced her. He further said that he had also filed an informatory petition before the Sub-divisional Magistrate in which he had reiterated the factum of divorce of his wife.

4. The learned Magistrate found the story of divorce unsubstantiated by the evidence on record. He found that the contents of the informatory petition had not been conveyed to the wife and the divorce could not be said to have been effected. He found that both the lady and the two children had been neglected by the petitioner and that there was a refusal to maintain them. Accordingly, he allowed the application and granted maintenance of Rs. 40/- per month to the wife and Rs. 30/- each per month to the two children, so long as the lady did not remarry and so long as the daughter was not married and the son had not become major. The learned Magistrate directed the payment of this maintenance from one year before the date of the order.

5. So far as the question of the grant of maintenance to the wife is concerned, counsel for the petitioner has not challenged the finding of the Magistrate on facts, but has submitted that upon the facts found in this case, as a conclusion of law, it must be held that even though the petitioner had not been able to prove that there had been a divorce on an earlier occasion, by alleging so in his written statement filed in this proceeding before the Magistrate, there was a clear and unequivocal declaration of his intention to divorce his wife irrevocably, and that must be given effect to. In support of his contention, he has relied on two cases of (1) Wahab Ali v. Qamro Bi, reported in A.I.R 1951 Hyderabad 117, and (2) Chandbi v. Bandesha, reported in A.I.R 1961 Bombay 121. In the first case, the learned Single Judge was dealing with a question similar to the one which has arisen before me in the instant case. It had been pleaded that there had been an earlier divorce, but this plea having been negatived, the same argument was raised, as before me, and the learned judge held that the statement contained in the written statement to the effect that the husband had already divorced his wife must operate as an expression of divorce by the husband from that moment. The learned Judge cited previous cases of the same Court including a Division Bench ruling. In the next case, another Single Judge had to answer the same question. In that case, in the written statement it had been alleged by the husband that he had divorced the wife about thirty years ago, and even in the absence of the proof of the fact of divorce at that point of time, his statement was held to operate as a declaration of divorce as from the date of the written statement and maintenance was granted only up to the period of Iddat from the date of the written statement. In another case of the Allahabad High Court in (3) Asmat Ullah v. Mt. Khatun-Unnisa, reported in A.I.R 1939 Allahabad 592, the statement in a written statement which had been filed by the husband in a proceeding for maintenance to the effect that he had divorced his wife was treated as an acknowledgement of divorce and it was held to have been effected and operative from the date of such Written statement.

6. Learned counsel for the opposite party has, however, contended that these decisions should not be accepted in view of the fact that the learned Judges who decided these cases did not take into consideration the scope of a proceeding under Section 488 and its nature. It is said that such a proceeding being civil in nature, the parties would be bound by the pleadings and no case which has not been set up in the pleadings can be allowed to be raised for the first time in the appellate or revisional court. It is submitted that if the case of a divorce from the date of the written statement is accepted, it would virtually amount to allowing the petitioner to raise a new plea which has not been raised in the court below. I am afraid I am unable to persuade myself to accept this contention. It is not a new plea being allowed to be set up by a party, nor is a new case set up by the court itself. The question as to whether or not there had been a divorce was agitated. It cannot be said that anything in the personal law of the petitioner prohibited is divorcing the opposite party at any time even during the continuance of the proceeding before the Magistrate. If no law debars him from doing that and if he files a written statement in which he expresses that intention clearly and irrevocably, there is no reason why it must not be taken notice of and given effect to. It is purely a question of drawing a conclusion of law from certain facts which was undisputed. The fact that fee filed the written statement is not in dispute; the fact that he made that statement therein is not disputed either. The only question, therefore, is to find out what is the legal effect thereof? This is what, in my humble view, appear to have been done in the cases which have been referred to earlier. I do not see, therefore, any force in the submission that these cases may not be accepted. I must state that no case of our own Court having a bearing on the question before me has been cited at the bar. There is a Division Bench decision of this Court in (4) Nalini Ranjan Chakravarty… v. Smt. Kiran Rani Chakravarty…Opposite Party. (A.I.R 1965 Patna 442), which explains the nature and the scope of Section 488 of the code of Criminal Procedure and the question of the effect of personal law of the parties in deciding the questions. That was however a case of claim of maintenance by a Hindu. I find myself in respectful agreement with the learned Judges who decided the cases of (1) Wahab Ali (A.I.R 1951 Hyderabad 117) and (2) Chandbi (A.I.R 1961 Bombay 121) and I find that the divorce in the present case mast be deemed to have been effected on the date of the written statement, which was the 26th of May, 1966.

7. In view of the findings of the learned Magistrate which I have referred to earlier and in view of my finding that there had been a divorce on the date aforesaid, it must be held that the lady was entitled to maintenance. The question is from which date to which? The learned Magistrate has allowed her maintenance, as stated earlier, with effect from one year prior to the date of the order until she is remarried. A reference to Sub-section (2) of Section 488 will make it clear that such allowance is payable from the date of the order or from the date of the application for maintenance. In the present case, the learned Magistrate has chosen a date which appears to be arbitrary. He should have, therefore, either allowed maintenance from the date of the application or from the date of the order. If the date of the order were to be taken as the date from which maintenance should be allowed to the wife, it will have absolutely no meaning, because long before the date of the order the written statement had been filed and the divorce had become operative. It is well settled that Chapter XXXVI of the Code of Criminal Procedure, which contains Section 488, is a provision beneficial to and for giving relief to neglected wives and children and must be construed liberally. As I said it would be denying allowance to the lady if the date of the order were to be taken to be the starting point of the grant of maintenance. Therefore, in the circumstances of this case, I must hold that the lady would be entitled to maintenance from the date of her application, which is the 7th of December, 1965.

8. The next question is the date of termination of this maintenance in view of divorce. It is well settled that for the purpose of finding out the conjugal relationship between the parties and for finding out the subsistence or cessation thereof, reference has to be made to the personal law of the parties. In (1) the Hyderabad case (Supra), Suryanarayana Rao, J., held that the divorced wife was entitled to maintenance for four months and ten days from the date of the divorce which His Lordship took to be the period of Iddat. In (2) the Bombay case (Supra), Shah, J., took it to be a period of three lunar (Sic) Mohamedan Law (sixteenth edition), Article 257 at Page 252, it is said that when the marriage is dissolved by divorce, the duration of the Iddat, if the woman is subject to menstruation, is three courses; if she is not so subject, it is three lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the duration of the Iddat is four months and ten days. If the woman is pregnant at the time, the Iddat lasts for four months and ten days or until delivery, whichever is longer. The facts stated in the Hyderabad case do not show as to what was the circumstance in which the woman was placed. In the instant case before me, there is no evidence that the lady was pregnant at the time of the divorce. It appears that she is in her twenties, and it will not be an improper inference that she is subject to menstruation. Three courses roughly mean three months. On these considerations, I direct the payment of maintenance to the wife from the date of the application until three months after the date of the written statement mentioned above at the rate allowed by the learned Magistrate.

9. With regard to the grant of maintenance to the son and the daughter, it has been urged by learned counsel for the petitioner that according to Mohamedan Law the custody of a son is permitted to the mother until he is seven and afterward it belongs to his father. In the case of a daughter, until her attaining the age of puberty, the proper custody is with the mother and thereafter with the father. It was, therefore, urged that the mother not being entitled to the custody of the two children after attaining the aforesaid age, grant of maintenance to them for the period subsequent was illegal. It is said that on the date of the order the boy was nearly six years old and the girl nearly eleven. It is, however, well settled that in matters like this, namely, the period for which the maintenance is to be granted, it is not the personal law which will govern the decision but the law contained in Section 488 itself. In (4) Nanak Chand v. Chandra Kishore Agrawal, reported in A.I.R 1970 Supreme Court 446, it was held that it was not the age of the children which was the determining factor, but their inability to maintain themselves which has to be taken into consideration for grant of maintenance. It is also well settled that the question of proper custody of the children is not the determining factor. On the other hand, irrespective of the right of custody, it is the factual custody of the children which must determine the question of payment of allowance for maintenance of the children. [See (5) Mt. Bashiran v. Nathu: A.I.R 1960 Rajasthan 255; and (6) Abnash Chander Kanshi Ram v. Smt. Soshila Devi: A.I.R 1962 Punjab 274]. I am, therefore, unable to accept the argument that since according to Mohamedan Law the petitioner would be entitled to the custody of the children after a certain age, he ceases to have an obligation to maintain them while they are not in his custody.

10. In the present case, the infant son has been found to be in custody of his mother. With regard to the custody of the daughter, there has been some dispute before the Magistrate and there has been strenuous arguments in that respect even in this Court. It appears that at the date of the application and subsequently, according to the allegation of the mother, both the children were in her custody. In the written statement, however, the petitioner controverted that. At the stage of evidence, the wife alleged the custody of both the children, so much so that during the course of evidence, the child who was in her lap was identified by another witness as the son of the petitioner. It appears that during the course of his evidence as a witness for himself, the petitioner did not claim to have the factual custody of his children. During the course of evidence of first party witness no. 3, Allauddin, it was stated on the 7th of April, 1969 that on the 13th of March, 1969 the girl had been kidnapped from the custody of her mother by the petitioner's mother and taken away somewhere and concealed. It appears from the order of the learned Magistrate that on the 19th March, that is, six days later, this girl was produced before him and he interrogated her with regard to the place of her residence, upon which she said that she was staying for the present with her grandmother. The order-sheet dated the 19th of March, 1969 of this case also shows that. On the basis of the production of the girl in court by her father, it was argued that she must be deemed to be in the factual custody of her father and, therefore, maintenance for her on the basis of her custody with her mother must be refused. In view of these circumstances and in view of the qualified statement of the girl herself, even if that be taken into consideration, it would only mean that she was there for the time being. It cannot be concluded, either from her production in court by her father on one particular date or from her own qualified statement, that she was staying permanently with her grandmother; and even if that be so, there is nothing to show that she is being maintained by her father. It would not, therefore, be proper to refuse maintenance to the daughter on this ground alone. The child is entitled to maintenance, if she is not being maintained by the father irrespective of the question of custody. Even if she were living under the care of her father himself and she came to court with the allegation that her father was neglecting her or refusing to maintain her, she would be entitled to maintenance. I am, therefore, unable to accept the contention that she is not entitled to maintenance in the circumstances of the present case which I have referred to above.

11. In that view of the matter, both the son and the daughter are, upon the findings of the court below, entitled to maintenance. The question, however, regarding the duration for which this maintenance is available to them, has to be answered again in respect of them. As stated earlier, the application for maintenance was filed on the 7th of December, 1965. The final order was, however, passed on the 29th of July, 1969. I have not been able to understand why this inordinate delay had to occur in the disposal of a summary proceeding, such as this. I am unable to understand as to why the learned Magistrate decided a third date for the commencement of the grant of maintenance in the absence of any such discretion given to him by Section 488 of the code of Criminal Procedure. In any case, the question remains as to whether the two children will get maintenance from the date of the application or from the date of the order. Learned counsel for the petitioner has urged that it would affect him seriously if they were to be granted maintenance with effect from the date of the application, because in that case it would cover a longer period and make his obligation heavier than it would be under the order of the Magistrate as it is at present. As I have said earlier, this provision has to be construed liberally and so far as possible beneficially to the claimants for maintenance. If the petitioner had been keeping these children with him and maintaining them, he would certainly have incurred expenditure over them, and the mere fact that not having done so, he is going to pay the allowance for that period cannot, in my view, he said to make his obligation more onerous than what is was at the beginning. I do not see any reason why in the circumstances of this case, the grant of maintenance should not take effect from the date of the application, viz., the 7th of December, 1965. It must be noticed that in view of the finding on the point of divorce, the petitioner has now gained an advantage, inasmuch as he has not got to pay any allowance to the lady after three months from the date of the written statement, viz., the 26th of May, 1966. From the point of view of equity therefore, the balance would not be upset if the order for grant of maintenance to the children is to take effect from the date of the application.

12. The learned Magistrate has allowed maintenance to the girl until she gets married and to the son until he attains the age of majority. It is well settled that the governing or determining criterion is the inability of the child to maintain itself irrespective of the question of age. But the question as to when the child is likely to become able to maintain itself has to be decided. A girl, after she gets married, becomes entitled to be maintained by her husband and with that ceases the liability of the father to maintain her. So also is the case of a son, although Section 488 does not say that he would be entitled to get maintenance only up to the age of majority, it can, however, be said that a boy when he becomes a major is likely to become able to support himself. Therefore, although it may not be wrong in law to grant maintenance even to a child who has already attained the age of majority, it would not, in my view, be wrong in law to say that the child would be entitled to maintenance till he attains the age of majority, because, it is expected, as I have said earlier, that he would be able to maintain himself by the time he attains the age of majority. I do not, therefore, see any reason to disturb the finding of the learned Magistrate in respect of the date of termination of the grant of maintenance.

13. In the result, I find that the order passed by the learned Magistrate has to be modified, as stated earlier. To sum up, Bibi Taibunnisa would be entitled to maintenance with effect from the 7th of December, 1965 to the 26th of August, 1966, and not thereafter, at the rate of Rs. 40/- per month. The two children, Rukhsana and Usman, will get maintenance at the rate of Rs. 30/- each per month from the 7th of December, 1965 until the girl is married and the boy becomes a major. Subject to these modifications, the application is dismissed.

Application dismissed.