This petition arises out of an application by the wife of the petitioner for maintenance under S. 488, Criminal Procedure Code for their child, which is in the custody of the mother.
The husband and wife separated because they did not get on well together and because the petitioner contemplated taking another wife—which he eventually did. The elders of the village met together and effected a compromise, by which the wife was to get land worth Rs. 400 for her maintenance and a house to live in. The compromise refers to the petitioner's undertaking to bring the child up and protect it and to get it married. I think this language would be more appropriate to the retention of the child by the father rather than by the mother; but whether this is what the panchayatdars decided is not quite clear. The learned Magistrate seemed to think this reference quite consistent with the child's staying with its mother. Some time after the settlement was effected, the petitioner sent a notice to his wife telling her that she should return the child or he would not be responsible for its maintenance or for its marriage. She replied to the effect that she was under no obligation to return the child and that he must maintain it. Eventually, the present application was filed by the wife for an allowance of Rs. 15 monthly as maintenance for the child. The Magistrate ordered payment of Rs. 10 a month.
Two points have been raised by the learned advocate for the petitioner. One is with regard to the custody of the child and his right to refuse maintenance unless the child is returned to his care, and the second is with regard to the quantum of maintenance. Whatever may be the correct construction of the settlement deed, it seems to me clear that as long as the child is with the mother, the mother must be given sufficient to maintain the child. If the father has a right to the custody of the child, he can at any time institute proceedings for that purpose. An adult can be coerced into coming into proper custody by refusing maintenance; but a child has no such choice; it must remain with whomsoever takes it. So that it would be improper for the Court to refuse maintenance for the child merely because it was of opinion that the petitioner had no right to the custody of the child.
It seems to me that the rate of maintenance awarded by the learned Magistrate is rather high. Evidence has been adduced in which it is said that the petitioner is doing some money-lending business, but the Magistrate has not said that he accepts that evidence. Without discussing the proper rate of maintenance he says, “From the evidence it is apparent that the counter-petitioner is not a poor man. He owns 2 acres of wet land and 6 acres of dry land. I therefore order that he pay Rs. 10.”
If that land is the only property of the petitioner he clearly cannot afford to give his child Rs. 10 a month. Those who arranged the compromise between the husband and wife thought that land worth Rs. 400 would yield a sufficient income for the maintenance of the wife. That land would not yield more than Rs. 30 or Rs. 40 a year. To award Rs. 10 a month for the child would therefore be grossly excessive. On the other hand it is equally clear that the mother, from such a small allowance, would have nothing to spare for the child. I reduce the rate of maintenance awarded from Rs. 10 a month to Rs. 5 a month.
N.R.R