ORDER
C.P. Sinha, J.
1. This application in revision is directed against the order dated 19-4-1971 passed by Mr. D. P. Singh. Magistrate. First class. Chapra. in a case under Section 488 of the Code of Criminal Procedure (hereinafter referred to as the Code). Under this order he has dismissed the maintenance claim of the two petitioners who are mother and son (aged about 3 years) against the husband opposite party Shahabuddin.
2. It is common ground that petitioner No. 1 Bibi Sakho Khatun and the Opposite Party Shahabuddin were married in 1964 and the son (Petitioner No. 2) was born to them in 1967. It is also admitted that at the time of their marriage Shahabuddin had a wife from before and that first wife is still alive.
3. Petitioner No. 1 (Bibi Sakho) Lald maintenance claim in her petition dated 29-1-1970 for a sum of Rs. 150/-per month for herself and her minor son alleging, inter alia, severe cruelty and ill-treatment at her husband’s hand against her. To illustrate that she alleged that he used to severely beat her in collusion with his first wife and mother and stopped food for days together. On the morning of 22-8-1969 he (husband) along with his brother-in-law and mother beat her (Petitioner No. 1) and tried to send her away to some unknown place after snatching the son (Petitioner No. 2) from her. The situation was. however, saved by the timely intervention of some other persons.
Thereafter, for fear of her life she came to her father’s place at Goldengani in Saran district after setting herself medically examined and has been living there since then. Her further case was that in those circumstances she along with her son wanted to live at her parents’ place separate from the husband and if he (husband) liked he could himself come and stay with them in her Goldengani residence. It was alleged that the husband is a man of means having land and residential house besides income at the rate of Rs. 6/- to 8/- per day as a mason and petty contractor,
4. On being called upon by the Court the husband Shahabuddin filed his show cause on 10-3-1970. In that show cause he seriously refuted the allegation of cruelty and ill-treatment made against him by the petitioners. He alleged that she was a lady of extremely bad culture and short temper and as such was always harsh in her behaviour with him as also his other relations. She had also become somewhat of a vagabond so as to get out of his control and went out as and when she liked against his liking. On 21-8-1969 she (Petitioner No. 1) assaulted his (husband’s) sister and mother which he seriously resented on which she (wife) abused him in filthy language and got ready to assault him. Following that incident she on that very day left his place and went away leaving the minor son with him saving him threats of bad con-sequences. He further alleged that she was unfortunately in league with undesirable persons to which he had been objecting and this was the cause of friction between them.
He. however, averred that he was willing to maintain her along with her minor son on the condition that she gave up her objectionable conduct and live with him in his house as a Hood wife. He refuted of being possessed of sufficient means alleging that he was a poor man and the little income that he made by working as a weaver (Dhunia) was hardly sufficient to maintain himself and his other relations dependent on him.
5. In course of the hearing of the case three witnesses including the wife petitioner were examined on her behalf. The opposite party also produced an equal number of witnesses including himself. The learned Magistrate, after having taken into consideration all the evidence and circumstances on record, discredited her case of cruelty and ill-treatment. He also did not accept her case regarding her having been driven out after assault on 22-8-1969. On the other hand, he relied upon the story set up by the husband about her having voluntarily left her husband’s place on 21-8-1969 after making assault on his sister and mother. He also negatived her stand that she was entitled to live separately from her husband in view of the allegations made by him in his show cause questioning her moral conduct.
According to the Magistrate, on the case made out. there was no such allegation by the husband against her. On these findings coupled with the further finding that she had refused to live with her husband without any sufficient reason, the learned Magistrate held that she was not entitled to any maintenance, and dismissed her petition. Being aggrieved with that order she has preferred the present revision.
6. Mr. Alakh Sunder Prasad, learned Counsel for the petitioners, has urged that on the facts of the case it was necessary that the Magistrate should have come to the conclusion that she along with her minor son are entitled to a separate living from the husband, cost of which he must bear and when he was not prepared to pay for their separate maintenance it should have been construed as his neglect or refusal to maintain notwithstanding his sufficient means and in that view of the matter the Magistrate should have felt no difficulty in allowing her claim for maintenance as enjoined by Section 488 (I) of the Code. Moreover, when admittedly the husband has another wife, no matter whether she was there from before his marriage with Petitioner No. 1. she was fully entitled to refuse to live with him for that reason which was to be construed as a just ground for her so doing, as per the explanation to the Proviso to Sub-section (3) of Section 488 and his disinclination to pay for their separate living clearly amounted to his refusal and neglect within Sub-section (I).
So in any view of the matter, according to counsel, the Magistrate was bound to allow the maintenance claim at a rate which he considered proper and reasonable on the materials before him. His contention further is that if conceding for a moment that the Magistrate found no case made out for allowing maintenance to her (Petitioner No. 1) he had no justification whatsoever to disallow it in the; case of the minor son (Petitioner No. 2). Since, however, the Magistrate has not applied his mind to this aspect of the matter at all as his Judgment will show, the case must necessarily be remanded to him for looking into the matter afresh on the evidence before him and see what allowance is to be allowed to the minor even if he sticks to his view that the mother is not entitled to any maintenance.
7. Against the above, the contention of Mr. A. N. Sahay. learned Counsel representing the Opposite Party. is that since the petitioner had not laid claim of separate living from the husband on account of his having another wife that plea is now not available to her in this revision. Her specific allegation about ill-treatment, assault and ultimate driving out by the husband on 22-8-1969 has been negatived on merit by the Magistrate who had duly considered the evidence and circumstances produced before him by the parties, and. as such, she cannot request this Court to so into that question of fact in this, revision specially when she has not been able to point any patent illegality or irregularity in those findings. As regards separate maintenance for the child, his contention is that his client is always ready to keen him (child) and maintain him. In fact he was with the father for quite some time but she anyhow managed to snatch him away from his custody through Court and in such a circumstance he could not be accused of refusal or neglect to maintain him (child) entitling him to maintenance under Section 488 (I) of the Code.
8. As already observed, in the Court below each side examined three witnesses including themselves. In his impugned order the learned Magistrate appears to have examined those evidence in the requisite manner and recorded his findings on that basis. While doing so. he had also taken into consideration the other relevant circumstance’s appearing on the record. Unfortunately for the petitioners, they have utterly failed to bring out any illegality or irregularity in that dealing of the matter. In fact. Mr. Alakh Sunder Prasad fairly conceded that on the evidence adduced petitioners had failed to substantiate the allegation of her ill-treatment as also her having been driven away on 22-8-1969 after assault against the opposite party. It may be relevant to mention that, as admitted by the Parties, this petitioner No. 1 has filed a substantive case against the opposite party regarding her aforesaid alleged assault on 22-8-1969 which is still awaiting trial.
In view of these facts, nothing wrong can be read in Magistrate’s finding disbelieving her case of ill-treatment etc, as set up before him. It is manifest that her claim for maintenance was based on those very grounds relating to ill-treatment etc. at the hands of the husband. When her basis of the claim was itself found to be not proved the question of her being allowed maintenance on that score could hardly arise. As her case stood, there was not even a whisper on her behalf that she wanted separate residence from her husband because of the presence of his other wife. In that background it is hardly open to her to try to raise this issue for the first time at this revisional stage. It would have been another matter if she had taken this plea and the Magistrate had rejected it wrongly in which event she could request this Court to go into that point to correct that error according to law. Her complete silence in making a grievance on that score can well be interpreted as her having been satisfied with that situation if not for all times at least when she had Lald this maintenance claim.
In that view of the matter the authorities of Kunti Bala Dassi v. Nabin Chandra Das . and Tejabai v. Shankarrao Baswanappa . cited for the petitioners to support the view that the ground that husband has contracted marriage with another wife is not available only to the first wife but also to the second wife are not of any material consequence in the context. In the impugned Judgment; learned Magistrate had. on the evidence before him accepted the case of the opposite party that petitioner No. 1 had voluntarily left his place the previous evening, i. e.. on 21-8-1969 after having quarrelled and assaulted his mother and sister and I am unable to find any fault with this finding, as it stands. The petitioners have also failed to show that the finding so arrived at by the Magistrate is not justified either on fact or law. The result of these findings is that the lady is to be treated as having voluntarily deserted the husband’s place without any illtreatment or assault from the side of the husband.
Mr. Prasad in this connection has argued that unless the husband had actually shown cruelty and ill-treatment to her how was it that she had left his place leaving her son who was then aged only 1 1/2 years behind. This according to the counsel, is a strong circumstance on which this Court would be justified in accepting the truth of her allegation of cruelty and assault. It is. however, difficult to accept this contention because, as already observed, the Magistrate’s finding on this point is clearly against her and it has not been possible for the learned Counsel to displace it in the revision. On the other hand he has conceded to its correctness. That being so. it is. perhaps, too much to expect this Court to hold in her favour on this point only on assumption.
9. In the submission of Mr. Sahay. learned Counsel for the Opposite Party her disentitlement of the maintenance was further strengthened by the fact that she had refused the offer of the husband to live with him who is always ready to maintain her in his house. In this connection he has invited my attention to Paragraph S of the impugned order where the Magistrate has discussed this matter. In Paragraph 2 (g) of his show cause the Opposite Party expressed his willingness and readiness to maintain petitioner No. 1 and her minor son provided she agreed to live with him in his house and give up his life of shame. The learned Magistrate had held this expression relating to shame as also some other allegations on this line as made in his show cause as not amounting to an allegation of immorality against her. and the correctness of these findings has not been assailed before me.
As the learned Magistrate has further pointed out. when in course of her cross-examination she (P. W. 1-Petitioner No. 1) expressed her readiness to return back to her husband’s place if’ he desired to take her back, a petition was filed by the husband in Court that she should be directed to return to her husband’s place which he was prepared to do just then. She however, expressed her preparedness to accent that offer only on the condition that he (husband) should himself come and stay with her in her father’s place at Goldenganj. It obviously amounted to her denial to accept the offer of the husband to take her back to his house and maintain her.
10. As to the contention of Mr. Prasad that even if the Magistrate found no case for allowing maintenance to the mother (Petitioner No. 1) he had no around to reject it in respect of the minor son (Petitioner No. 21 no such case appears to have been made out in the Court below. There is no controversy between the parties that when she had left her husband’s place, the minor son remained with the father. Subsequently, however, she got the custody of the child through Court for which, as it is said, she had specifically moved it and since then he is with her. According to Mr. Sahay. his client is ever ready to have the son back and take proper care of him but she is herself riot willing ‘to part with the child on any account. This being so. how can he (father) be accused of refusal or neglect to maintain him (child) so as to give her right to claim maintenance for him.
The submission of Mr. Prasad, however, is that the parties being Muslims. Petitioner No. 1 as mother is entitled to the custody of the minor son and as such, even when he was there it was the duty of the father to give maintenance for the child and his unwillingness to do so does amount to his refusal or neglect of maintenance within the meaning of Section 488 (1) of the Code. On the available facts, it is not. however, possible to accept this contention of Mr. Prasad. As already observed, undisputedly the child was with the father but the mother got his custody transferred to her through Court. Mr. Sashay. the father’s counsel, has unequivocally asserted that his client had duly maintained him so long he was with him and is still ready to have and maintain him but she is not ready to part with him (child), On her side it has been clearly given out that she was not prepared to allow the child to go to the opposite party and all that she needed was that hp (Opposite Party) should bear his maintenance without in any wav disturbing her custody of him, Regard being had to these facts it will not, I think, be correct to hold the Opposite Party guilty of refusal or neglect to maintain the child as envisaged in Section 488 (1).
11. In Smt. Gurudeo Kaur v. Balveer singh ILR (1960) 10 Raj 1531. which was fortified by other authorities, it was Lald downs that apart from any consideration of personal law a right to maintenance under Section 488. Criminal Procedure Code only accrues upon proof of neglect or refusal to maintain where the father is willing to keep his child with himself and 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. On the facts of the case. I do not think the Magistrate can be held to have committed an error in not separately allowing maintenance for the child when he refused to allow it to the mother. In such a situation where is the need for a remand of the case to the Court below for determination of this particular point.
12. For the above reasons, the revision appears to be without merit and it must fail. It is. accordingly. dismissed.