Judgment.- The questions that are raised in this criminal revision case are of some import to the claim of minor children for maintenance under section 125 of the Criminal Procedure Code. 2. This criminal revision case arises out of M.C No. 50 of 1975, on the file of the 6th Metropolitan Magistrate’s Court, Hyderabad, filed by the two respondent’s for maintenance against their father, who is the present petitioner. They were of very tender age, two years and one year old, at the time of filing the petition on 10th September, 1975. The father and mother were both employed and in fact the mother, it is so alleged, is getting more emoluments than the father. There were intermittent differences between the spouses and they were living apart on occasions. Consequently the petitioner issued on 27th of May, 1975, a notice to the wife to come back and live with him. Where there was no response he filed a suit for restitution of conjugal rights on 18th of June. 1975. I am informed by his learned Counsel that the suit is now going through its trial in the City Civil Court. Then the present petition was filed by the two children. However soon after filing of the petition, the wife and children joined the petitioner and lived with him till May, 1976. Once again the wife went away taking the children with her. 3. The 6th Metropolitan Magistrate rendered his decision in the petition on 23rd of November, l976. On an examination of the evidence he cane to the conclusion that there was no neglect or refusal on the part of the petitioner to maintain his children and the mother was responsible for the children staying away from the father. In that way he dismissed the petition. There upon, the respondents carried the matter in revision and the Metropolitan Additional Sessions Judge held that the case of the wife was different from the case of the children. It maybe that the husband was not guilty of neglect or refusal to pay maintenance to the wife. But the case of the children stands on a different footing. They have no separate volition or freedom of their own. They are completely dependant on their parents. The mother was entitled to have the custody of the children under the Mohemmadan law. But the case of the children stands on a different footing. They have no separate volition or freedom of their own. They are completely dependant on their parents. The mother was entitled to have the custody of the children under the Mohemmadan law. The father has a duty to seek his children wherever they are and maintain them. His merely saying that if the children went back to him he was prepared to maintain them would not save him from he charge of neglect or negligence as postulated in section 125 of the Code of Criminal Procedure. Consequently he allowed the revision, held that the children were entitled to maintenance and remitted the petition back to the trial Magistrate for fixing the quantum of maintenance. The husband has filed this revision petition challenging the view taken by the Metropolitan Additional Sessions Judge. 4. Learned Counsel for the petitioner raises two principal points before me. Firstly, the wife and children went and joined the petitioner after the petition had been filed and lived with him for sometime. The consequence of this would be that the petition could not be maintained any further. If the children so wanted they could have file d and they should file a fresh petition for maintenance. The second contention is that the petitioner was always not only ready but also anxious to look after his own children and to maintain them but it was the wife that took them away and there was no neglect or refusal on his part to maintain. Reliance is placed on Nafesa Pillai v. Jayammal1, Nagendramma v. Ramakotayya2and Bibi Sakha v. Shahabuddin3. 5. Mr. Quadri, learned Counsel for the respondents (children) rebuts this argument by saying that the point as to the maintainability of the petition was never taken and that it was not taken even in the memorandum of petition. It may be a question of law but if it is permitted to be raised now, it would cause grave prejudice to his clients for the reason that had it been raised before trial Magistrate itself, they would have filed if they were so advised,a fresh petition for maintenance. Having failed to raise this contention all along, the petitioner cannot raise it for the first time during arguments in this criminal revision case. On the second question Mr. Having failed to raise this contention all along, the petitioner cannot raise it for the first time during arguments in this criminal revision case. On the second question Mr. Quadri points out that it is the duty of the father i.e., the petitioner in this case, to seek his children wherever they are and maintain them. He cannot sit back and say that if they come to him he will maintain. His legal liability to maintain the children continues even though the wife is not co-operating with him. 6. "The crucial aspect which will have to be considered is the distinction between a claim for maintenance by the wife and a claim for maintenance by the children. Wife is generally a major and a person with volition and will of her own. She acts according to her own will. The case of the children, however, is patently different. They have no individuality of their own. They have no free volition or will of their own. They are completely dependant even in this behalf on their parents. The present respondents, Who are only two years and one year old, stay wherever their parents keep them. They do not have the necessary discretion to choose one of the parents if the parents are living apart. Because they are of such tender age, when the wife left the petitioner again in May, 1976, she took them back with her. Under the Mohamedan Law the mother is entitled to the custody of the son until he attains the age of seven and the custody of daughter until she attains puberty. Such being the position in the J personal law also, apart from the natural inability and incapacity of the children to exercise their own will and Volition, the children stay with their mother. At the same time it should also be recognised that it is the duty of the father to maintain his children wherever they are. He cannot avoid this responsibility or liability by saying that the children are with the mother or that the mother is having better re sources then he. These defences may be available when the wife herself claims maintenance. But they would be of no avail when minor children claim maintenance. He cannot avoid this responsibility or liability by saying that the children are with the mother or that the mother is having better re sources then he. These defences may be available when the wife herself claims maintenance. But they would be of no avail when minor children claim maintenance. It is his duty to seek out the children and maintain them and since under the Mohamedan Law he cannot get the custody of the children until the boy attains the age of seven and the girl attains puberty, his liability to maintain them even if they stay with the mother even supposing she is recalcitrant, continues to be in force. 7. Section 125, Criminal Procedure Code, itself keeps this distinction. The second provision to sub-section (3) of sectionl25 for enforcing the order says that if the husband offers to maintain his wife on condition of her living with him and she refuse to live with him, the Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer if he is satisfied that there is just ground for doing so. Sub-section (4) lays down that no wife shall be entitled to receive allowance from her husband if she is living in adultery or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent. Once again sub-section (5) says that no proof that any wife in whose favour an order has been made under section 125, is living in adultery or that without sufficient reasons she refuses to live with her husband or that they are living separately by mutual consent, the Magistrate shall cancel the order. It is significant that the statute while making these provisions in respect of the wife does not make any such provision in respect of the children. That is for the obvious reason that these considerations do not apply to the children at all. Since the minor children have no will or volition of their own, they cannot be held responsible as to where they stay. 8. It is true that in sub-section (1) different words are not used in respect of the wife and the children in order to enable them to get maintenance. The words “neglects or refuses to maintain” are applicable to both the wife as well as the children. 8. It is true that in sub-section (1) different words are not used in respect of the wife and the children in order to enable them to get maintenance. The words “neglects or refuses to maintain” are applicable to both the wife as well as the children. Therefore, the learned Counsel argues that even the children, in order to succeed in getting maintenance under section 125, shall establish that the father has neglected or refused to maintain their. There is no doubting this proposition stated by the learned Counsel. But neglecting or refusing to maintain the minor children have to be construed and understood in relation to the children taking into consideration their helplessness and lack offence will and volition. In so far as the minor children arc concerned, the father whose responsibility is to maintain them, has to seek the custody of the children and then maintain them. If he does not do so, it means he neglects or refuses to maintain them. If by virtue of personal law the wife alone can have the custody of such minor children, even then the responsibility of the father to maintain their which is cast on him not only by the laws of the land but also of the natural laws of humanity continues to be in force. Therefore, the words “neglects or refuses to maintain” have a special significance when they are applied to minor children. Further, the husband cannot say that if the children are entrusted to his case or if they come to him, he will maintain them and until then the children have no right to claim maintenance under section 125, Criminal Procedure Code. As I have said, whereever they live, his liability to maintain bis minor children continues unabated. 9. I am supported in this view by the following decisions. King, J., held in Mohideen B. v. Basu Sahib1, that where a mother, who is the legal guardian, forsakes her husband without any reasonable excuse, the children should be granted maintenance even though their mother is not entitled to get it. It was held in H.J. Mascreen v. (Mrs.) R.K. Mascreen2, that the duty to maintain the children is cast on the father and not on the mother. 10. It was held in H.J. Mascreen v. (Mrs.) R.K. Mascreen2, that the duty to maintain the children is cast on the father and not on the mother. 10. In C. Padmamma v. C. Nasri Reddy3, Chinnappa Reddy, J., made the distinction between the wife and the children by pointing out that the wife has a volition and discretion of her own while the child has not. If a wife refuses to live with her husband without any sufficient reason, she forfeits her right to be maintained under section 488. There is no question of the chill refusing to live with his or her father since she has no free choice in the matter. She stays where she is and if the father is dissatisfied with the custody of the child, it is open to him to seek the custody of the child, in an appropriate proceeding. But he must maintain his children. These decisions support the view I have taken. 11. ‘In Natesa Pillai v. Jayammal4, the wife lived with husband after the maintenance order was made and thereafter she once again separated. Somasundaram, J., held that the former order could not be executed. 12. Subba Rao and Ramaswami, JJ., explained the object of section 488 of the old Criminal Procedure Code, in Nagendramma v. Ramakotayya5. Subba Rao, J., (as he then was) explained the object by saying that it was not to punish a parent for his past neglect but to prevent vagrancy by compelling those who can do so and to support those who are themselves unable to do so and have a moral claim to be supported. The object is to provide cheaper and speedy but limited relief for deserted wives and children. It is by no means, however, the only or indeed most satisfactory remedy open to them. 13. In Bibi Sakha v. Shahabuddin6, it was held by a learned single Judge of that Court that 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 and the person having the custody of the child is not entitled to claim maintenance for him. 14. With the last of the judgments, with great respect. 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 and the person having the custody of the child is not entitled to claim maintenance for him. 14. With the last of the judgments, with great respect. I am unable to agree and the other two decisions cited by the learned Counsel for the petitioner do not in any way help him in his contention. 15. Now in the light of what I have considered above, I will discuss the two points raised by the learned Counsel for the petitioner. It is true that that the wife and children lived with the petitioner for some time after the petition was filed and before it was finally decided. The learned Counsel for the petitioner says that the question as to the maintainability of the petition was argued all along but the learned Counsel for the respondents demurs to it. However, I need not go into this disputed fact. If the wife has gone back to the husband after the petition had been filed for maintenance then undoubtedly she would lose her right to get maintenance on that petition. If a subsequent cause of action arose, she has to file a fresh petition. But the case of the children stands on a different footing. When they went back to their father or later once again separated from their father, it was not done on their volition or discretion. They simply came with their mother and sent back with their mother. So long as they were with their father be maintained them and when they were taken away from him by the mother, then they cannot be held responsible for that action. The liability of the father to maintain them continues and it cannot be said that since they came back during the pendency of the petition, they have lost their right altogether and they can get maintenance only if they file a fresh petition. I cannot subscribe to this view. It is true that they were maintained by the father for sometime during the pendency of the petition. Therefore, they cannot now get the maintenance for the period when they lived with their father. But they cannot be obliged to file a fresh petition for maintenance. I cannot subscribe to this view. It is true that they were maintained by the father for sometime during the pendency of the petition. Therefore, they cannot now get the maintenance for the period when they lived with their father. But they cannot be obliged to file a fresh petition for maintenance. The action of the mother, for which they were not responsible, cannot deprive them of the right to claim maintenance on the petition filed on their behalf. Therefore, I hold that the children living with the father does not make the petition filed by them on 10th September, 1975, not maintainable. The event of their living with the father will only result in the position that no maintenance need be paid to them for that period. They are certainly entitled to maintenance from the date of the orders. 16. On the second question, as I have already pointed out, neglect or refusal to maintain has a different connotation when they are applied to minor children, since it is the father’s duty to seek out his children and maintain. There is the established fact that when the two respondents were not living with him, the petitioner was not providing for their maintenance. Therefore, that is sufficient to satisfy the requirement of neglect or refusal to maintain within the meaning of section 125(1), Criminal Procedure Code. So, the petitioner is liable to maintain the two respondents. 17. It is also urged by the learned Counsel for the petitioner that it was in the discretion of the trial Magistrate to grant or not to grant maintenance and once that discretion was exercised by the learned Magistrate by refusing to grant it, the learned Metropolitan Additional Sessions Judge erred in interfering with that discretion. It is argued that the revisional Court should not have interfered with the decision of the trial Court. I do not agree that it was in the discretion of the trial Magistrate to grant or to refuse maintenance. It was a judicial decision based on facts and legal considerations as they arise out of the language and provisions of section 125. Further, the trial Magistrate has taken the erroneous view that because the wife was at fault, the children in whose custody they were should suffer. It was a judicial decision based on facts and legal considerations as they arise out of the language and provisions of section 125. Further, the trial Magistrate has taken the erroneous view that because the wife was at fault, the children in whose custody they were should suffer. When the trial Court has committed a legal error and thus failed to exercise the jurisdiction vested in it, certainly revisional Court can interfere. 18. The result of the above discussions is that the learned Metropolitan Additional Sessions Judge is right in holding that the children are entitled to maintanance and remitting back the matter to trial Court for fixing the quantum. I, however, make it clear that in view of the living together of the parents and the children for sometime after the filing of the petition the respondents will be entitled to maintenance only from the date of the order i.e., 23rd of November, 1976. With this observation the criminal revision case is dismissed.