JUDGMENT
Virendra Saran, J.
1. I have heare Sri Ram Prasad Singh, learned Counsel for the applicant and Sri Satendra Pratap Singh, learned Counsel appearing on behalf of contesting respondent No. 2 Smt. Sarabjit Kaur.
2. Smt. Sarabjit Kaur filed an application Under Section 125 Cr.P.C. claiming maintenance for herself and for her infant child Amlok Singh, aged about 4 years in the Family Court, Kanpur Nagar. The case was registered as Matrimonial Petition No. 282 of 1993. According to the wife Smt. Sarabjit Kaur she was treated with cruelty and thrown out of the conjugal home and she, being a house wife, had no means of subsistance for herself and her child.
3. The present application Under Section 482 Cr.P.C. has been filed by husband Sardar Anoop Singh for quashing of the proceedings Under Section 125 Cr.P.C. Learned Counsel appearing on behalf of the applicant has submitted that the applicant has filed a Habeas Corpus petition against the father of Smt. Sarabjit Kaur with alleging that the father of Smt. Sarabjit Kaur was retaining her alongwith child Amlok Singh. Learned Counsel submitted that in the Habeas Corpus petition this Court had directed that Smt. Sarabjit Kaur and her infant child be produced in this Court but that has not been done so far. The second ground on which the proceedings Under Section 125 Cr.P.C. are sought to be quashed is that the application Under Section 125 Cr.P.C. was filed in the Family Court after filing of the Habeas Corpus petition as a counter be last and in these circumstances it is liable to be quashed.
4. Sri Satendra Pratap Singh, appearing on behalf of Smt. Sarabjit Kaur has submitted that Smt. Sarabjit Kaur and the child could not be produced as Smt. Sarabjit Kaur is lying bed ridden due to stones in her kidney and without her the infant child cannot be brought to Court. He further submitted that the applicant treated the wife with cruelty and tried to strangulate her to death and under compelling circumstances she had to take shelter at her father’s place with her infant child. Sri Satendra Pratap Singh further submitted that Smt. Sarabjit Kaur has also filed a case Under Sections 403, 406, 120B I.P.C. against the applicant.
5. The right of a child to get maintenance is an independent right. A child does not live either with the father or with the mother on its own volition and cannot be deprived of it’s right. There is no dearth of judicial pronouncements to lend countenance to the view I have expressed above. (See also Jahan Begum v. Rizvan Ulla, 1979 A.C.C-3, Balveer Singh v. Hardeep Singh, 1976 Cr.L.J. 1136). In a vary recent case the Gujarat High Court has held that child’s right to maintenance is quite independent and is not effected even by the provisions of the Muslim Women (Protection of Divorce) Act, (See Abdulla v. State of Gujarat, A.A. 1988, Gujarat, 141). That being so the proceedings cannot be quashed in respect of the child.
6. Adverting to the maintenance application filed by the wife, it will be during the course of proceedings that the Family Court will be able to decide, after evidence is led, whether Smt. Sarabjit Kaur was treated with cruelty or whether there exists any legal justification for her to refuse to live with the applicant. Similarly, the mere fact that the application for maintenance was filed after filing of the Habeas Corpus petition is not a ground to quash the proceedings Under Section 125 Cr.P.C. All relevant facts can be suitably decided only in the proceeding Under Section 125 Cr.P.C. Sarabjit Kaur, being a major, is entitled to live wherever she chooses and she will be in the witness box in the proceedings Under Section Cr.P.C. and even in respect of the custody of the child more appropriate remedy was to file an application under Guardian and Wards Act and I wonder whether the question of welfare of the chiled can be decided by mere exchange of affidavits in Habeas Corpus petition. The allegation that Sarabjit Kaur is living detained by her father is falsified by the fact that she has herself filed criminal complaint against the applicant Under Sections 406/403/120B I.P.C.
7. This application Under Section 482 Cr.P.C. has no merits and is hereby dismissed. A certified copy of the order may by given to the learned Counsel for either side as early as possible on payment of usual charges.
