Judgment : This is a criminal revision petition under Secs.397 and 401, Crl.P.C., by the petitioners who were respondents in C.R.P.No.28of 1984, on the file the Principal Sessions Judge, Pondicherry, which was a revision petition filed against the order passed in M.C.No.1 of 1983. The petition was filed under Sec.125, Crl.P.C., claiming maintenance by the present revision petitioners before the learned Judicial First Class Magistrate, Pondicherry. The present revision petitioners are the minor son and mother and the second petitioner is the wife of the respondent herein, and the first revision petitioner is his minor son. They filed a petition under Sec.125, Crl.P.C., alleging that the marriage between the second petitioner and the respondent was solemnised on 11.9.1980 at Harinarmandapam, and after the marriage they lived together with the parents of the respondent. At the time of marriage and also subsequently the second petitioner’s father was asked to give dowry in the nature of gold jewels, or cycle, silver plate and a television set. The mother of the respondent treated her in a cruel manner and also attempted to abort her child and went to the extent of attempting to commit murder, as a result of which she was forced to flee away from the house and seek refuge in the house of her parents. 2. The husband has neglected and refused to maintain her from the day when she left his house. She has no sufficient means to maintain herself and the child. The respondent is a Government employee earning a monthly salary of Rs.1,200 apart from owning immovable properties. Since the respondent has failed to maintain, she caused a notice dated 3.7.1983 to be sent through counsel calling upon him to maintain the petitioner, and the respondent acknowledged the notice and sent a reply dated 17.7.1983 expressed unwillingness to live with her and slating that the respondent is more interested in getting divorce. 3. The respondent filed a counter admitting the marriage and denying the allegation with regard to the demand of dowry and cruelty by his mother. It was slated that on 11.6.1981 at 11.30 P.M., the second petitioner left the house without any reason, and in consequence of which the prestige of the family was affected, and in such circumstances, he will not re-unite and live with her and because of her conduct he is not liable to pay maintenance. 4. It was slated that on 11.6.1981 at 11.30 P.M., the second petitioner left the house without any reason, and in consequence of which the prestige of the family was affected, and in such circumstances, he will not re-unite and live with her and because of her conduct he is not liable to pay maintenance. 4. In the enquiry the second petitioner examined herself as P.W.1 and marked documents copy of the notice sent by her through her counsel dated 3,7.1983, and the reply sent by her husband dated 17.7.1983, and they had been marked as Exs.P1 and P2. The husband examined himself as P.W.1 and had also examined 3 more witnesses as R.Ws.2 to 4. No document had been marked on behalf of the husband. After considering the evidence on record the learned Judicial First Class Magistrate, Pondicherry allowed the petition ordering the respondent to pay Rs.200 per month to the petitioner No.1 and Rs.300 per month to the petitioner No.2 from the date of filing of the petition as well as costs of the petition. 5. Aggrieved with the said order, Criminal Revision Petition No.26 of 1984 was filed by the husband and the learned Principal Sessions Judge, Pondicherry in his order dated 2.5.1986 allowed the revision petition. Hence, the present revision. 6. The petitioners have now contended that the order passed by the Sessions Judge is contrary to law and the learned Judge erred in reversing the well considered judgment of the Judicial First Class Magistrate. It is further contended that the learned Judge erred in observing that there is no proof of ill-treatment and the learned Judge has not properly considered the evidence on record. The learned Judge erred in relying upon the order of the Special Judge in M.O.P.No.38 of 1984 which had been subsequently reversed and therefore it has been prayed that the revision petition has to be allowed with costs. 7. Thepoint that arises for consideration in this Criminal Revision Case is whether the revision petitioners are entitled to maintenance, if so the order passed by the learned Sessions Judge has to be set aside. 8. The second petitioner in the petition has mainly stated that at the time of solemnisation of the marriage and subsequently dowry was demanded and it has also been averred that there was ill-treatment by the mother of the respondent. 8. The second petitioner in the petition has mainly stated that at the time of solemnisation of the marriage and subsequently dowry was demanded and it has also been averred that there was ill-treatment by the mother of the respondent. A grave allegation has been made about the attempt to abort her child and there was an attempt to commit murder and she was forced to leave the house. In her evidence as P.W.1 she has stated that because of the ill-treatment by her mother-in-law she left the house in the month of vaikasi (11.6.1981). In the very next sentence she has stated that her mother-in-law knocked her out of the house. The learned Sessions Judge analysing the evidence has chosen to point out that as P.W.1 she has not specified any act of ill-treatment on the part of her mother-in-law. As pointed out by the learned Sessions Judge, she herself has stated that at the time of festival she tried to leave the house and she was requested to stay on. It appears after she left the husband’s house she had given birth of the child. Long after there had been a panchayat but it was not fruitful. As pointed out by the learned Principal Sessions Judge, apart from herself as P.W.1 no other person had been examined to substantiate the allegations made by her in the petition as well as in her evidence. It has to be pointed out that the evidence of the husband examined as R.W.1 reveals that even at the time of marriage he was given a motor cycle. Therefore, the version of the wife that there was a demand subsequent to the marriage regarding the motor cycle cannot be correct. The other allegations regarding the demand cannot be said to have been established clearly. But at the same time it may be pointed out that the husband also has not come forward entirely with true version. 9. It is seen that the husband in his evidence as R.W.1 has stated that even earlier to May, 1981 the wife had gone to her parent’s house because of her anger. The reason for her anger has not been mentioned. 9. It is seen that the husband in his evidence as R.W.1 has stated that even earlier to May, 1981 the wife had gone to her parent’s house because of her anger. The reason for her anger has not been mentioned. But it appears she returned to the husband’s house and also attempted to leave the house at the time of Droupathi Amman festival without informing himself or others in the house, and when his parents requested her not to go, she returned to the house. The respondent would state that he did not know the reasons for her attempt to leave the house. He has also stated that in the Panchayat held the wife informed the Panchayat that she did not like him. His further evidence reveals that there had been no smooth living as between the husband and the wife. According to him, on the night of 11.6.1981 she went out of the room saying that she was suffering from stomach pain and went to the garden side and later went to the house. He went and informed his aunt about her leaving the house and also the parents. His father asked his younger brother to go first and later his father also went and searched for her in other houses. One Sambasivam (R.W.3) had gone in search of her and the wife failed to return with him. He has further stated that there had been no reason for her leaving the house. In this connection it is to be pointed out that the conduct of the husband appears to be strange in not taking any steps to find out whether she was really suffering from any stomach pain or she was feigning such stomach ache and leaving the house without any valid reason. As pointed out by the trial Court as regards this aspect, the evidence of the petitioner as well as the respondent cannot be said to be quit clinching. Later on, the husband did not take any step to get her back in his house alleging that the family prestige was affected because of her leaving the house in such manner. He has stated that he filed the petition for divorce against the wife. Later on, the husband did not take any step to get her back in his house alleging that the family prestige was affected because of her leaving the house in such manner. He has stated that he filed the petition for divorce against the wife. On 3.7.1983 the wife had sent notice (Ex.P1) to the respondent alleging cruel treatment by her mother-in-law for which the respondent kept quite and according to the notice, he even failed to talk with her at the instance of his mother. She also alleged that she was chased out of the house by the husband. She has also made a grave allegation that the mother-in-law told the husband and that she should be murdered somehow or other. May be the wife has come forward with exaggerated allegations. In that notice the husband has been called upon to take back the wife failing which it has been mentioned that steps will be taken for restitution of conjugal rights. The husband has chosen to reply through counsel controverting the allegations made and also mentioning other details regarding her attempt made to leave the house at the time of festival and also as to how the wife left the house on 11.6.1981. It will be relevant to point out that it is also mentioned in Ex.P2 that a complaint was given by the father of the respondent regarding the wife leaving the house on 11.6.1981 at Mudaliarpet Police Station, and according to him, the husband had not known as to where the wife was living and there was no communications to him about the wife’s living with her parents and the wife had given birth to the first petitioner in the month of December, 1981 and it will be a grosteque falsehood on the part of the respondent to say that he had not known about the birth of the child. In the evidence as R.W.1 he has slated that he had himself given the complaint and he could not know where the wife was till the Panchayat and according to him since the wife left the house, he could not go and search for her. He has also stated that he had not known as to whether his wife was in the family way at the time she left the house. He has also stated that he had not known as to whether his wife was in the family way at the time she left the house. The wife had left the house on 11.6.1981 and it is stated that the child was born on 25.12.1981. In such circumstances, I feel the respondent has come forward with a flagrant falsehood. According to him, he came to know about the birth of child only after the notice. Even accepting the said version that he came to know the birth of the child after the issue of notice, it has to be pointed out that he had not chosen to see the child or take steps to get the wife and the child back in his house. It may also be pointed out that in the reply notice Ex.P2 it has been alleged that on the night when the wife left the house Sambasivam who followed her was threatened by some rowdy elements and he was directed to return to his place. Sambasivam examined as R.W.3 did not whisper any word about such incident. He has only mentioned that he asked the wife to return to the house, but in an angry mood she went and on the next day himself and R.W.2 went to her house. 10. R.W.2 Rengan has also stated that in the Panchayat it was made known that the wife had grievance against her husband. R.W.3 Sambasivam has also stated that he requested the father of the respondent to take the wife to their house but the father of the respondent stated their prestige had been affected and the husband’s parents were not willing to take her back in the house. The wife in her evidence as P.W.1 has categorically stated that she is willing to live with her husband. On the other hand, the husband stated that because the wife left the house in the night, the family prestige had been affected and his re-union with the wife may not be possible and at the same breath he has stated that he is not liable to pay maintenance. Having regard to such evidence available on record, it is to be pointed out that, as contended by the learned counsel for the revision petitioners, there had been no proper appreciation by the learned Sessions Judge and on the other hand there had been misappreciation of evidence. Having regard to such evidence available on record, it is to be pointed out that, as contended by the learned counsel for the revision petitioners, there had been no proper appreciation by the learned Sessions Judge and on the other hand there had been misappreciation of evidence. As rightly pointed out by the learned counsel for the revision petitioners, it appears the learned Principal Sessions Judge was more impressed by the fact that R.O.P.No.38 of 1984 for divorce was allowed by order dated 24.2.1986. The maintenance order was passed by the learned Judicial First Class Magistrate, Pondicherry on 21.4.1984 long before the divorce petition had been ordered and during the course of arguments, it was submitted by the learned counsel for the revision petitioners that in appeal the said decision has been set aside and the petition for divorce has been dismissed. 11. The learned counsel for the respondent husband also contended that the wife left the house without any valid reason and she was not entitled to live separately from him and therefore she is not entitled to be maintained and it is also contended that having regard to such circumstances, he is also not liable to pay maintenance even to the child. In this connection, the learned counsel also placed reliance in the decision in Dinsab Kasimsab v. Mohammed Hussain, A.I.R. 1946 Bom. 390. The said decision had been given under Mahomedan Law and it has been pointed out there that with regard to the father’s liability to maintain the children, there is hardly any difference between the Mohamedan Law and the Hindu Law. A mahomedan father’s duty to maintain his sons until they attain majority and his daughters until they are married is absolute and it is a legal liability which can be enforced in a Court of Law. A Hindu father is under a similar imperative obligation to maintain his children. But the Hindu Law, unlike the Mohamedan Law recognizes the father as the natural and legal guardian of his minor children from the time of their birth. Hence, unless he refuses to keep his children with himself Or is found unfit to do so, he cannot be compelled to give separate maintenance to them. But the Hindu Law, unlike the Mohamedan Law recognizes the father as the natural and legal guardian of his minor children from the time of their birth. Hence, unless he refuses to keep his children with himself Or is found unfit to do so, he cannot be compelled to give separate maintenance to them. The principle extends to Mohamedan parties and the father is entitled to decline to maintain his children if they refused to live with him without reasonable cause went he had a right to their custody as their guardian (at pages.392 and 393). The learned counsel further contended basing his contention on the above said decision rendered by the Bombay High Court that the decision rendered in this case directing payment of maintenance to the child without considering the right of the father-natural guardian to the custody of the children required reconsideration. But it should be pointed out that even the Bombay High Court in the very same decision has held that in a proceeding under Sec.488, (old Code), Crl.P.C., so far as the maintenance of a child is concerned, the Criminal Court is concerned only with the fact of its custody and not the propriety of that custody. But when the matter comes before a civil Court, it has to consider whether the father is not the lawful guardian of the child and whether for any reason he is unfit to have its custody. The right to custody can be a good defence to a claim for the separate maintenance of the child in a civil suit, provided the father has expressed his bonafide, willingness to keep and maintain the child. In the instant case as pointed out earlier, the father did not even attempt to go and see the child much less wanted the custody of the child from the wife. In such circumstances, the contention put forward on the basis of the said decision cannot at all be accepted in this case. In this connection it is pointed out that in the decision reported in Muniammai v. Venkataramachari, (1943)2 M.L.J. 318 : A.I.R. 1943 Mad. 768, a wife who applied for maintenance for herself and the child was found to be living in adulterous life, but the child was found to be that of the husband and in such circumstances the learned Magistrate after trial dismissed the petition. 768, a wife who applied for maintenance for herself and the child was found to be living in adulterous life, but the child was found to be that of the husband and in such circumstances the learned Magistrate after trial dismissed the petition. Reversing the order the learned Justice Kuppuswami Ayyar held that because of the adulterous life the wife was not entitled to maintenance and also pointed out that the husband had not at any time, wanted his child to go to him and therefore he was held liable to maintain the child even though the child happens to be with the wife. The order of the Magistrate was modified directing the father to pay maintenance to the child. It may be pointed out that in the decision reported in Kuppale Krishtappa v. Premaleelamani, (1943)1 M.L.J. 120 : 203 I.C. 615: A.I.R. 1943 Mad. 705, it has been held that so long as the child is with the mother, she must be maintained by the father and if the father has a right to the custody of the child, he can at any time institute proceedings for that purpose and it could be improper for the Court to refuse maintenance for the child, merely because it was of opinion that the mother had no right to the custody of the child. In the decision reported in Chamala Padmanama v. Chamala Narui Reddy, 1972: 1 A.W. 839, the facts revealed that the wife who applied for maintenance under Sec.488 for herself and the minor child, was found to have left her husband’s house voluntarily with the child without sufficient reason and it was held that she could not claim maintenance. In the revision before the learned Sessions Judge the view was taken that the case of the child stood on a different footing and the child was 3 1/2years old and the child had no violation in the matter and in such circumstances a reference was made to the High Court. It was held by the learned Justice Chinnappa Reddy that the rejection of a wife’s claim to maintenance on any ground whatever cannot affect the child’s claim to maintenance was ordered to be paid. It was held by the learned Justice Chinnappa Reddy that the rejection of a wife’s claim to maintenance on any ground whatever cannot affect the child’s claim to maintenance was ordered to be paid. In the decision reported in Kochukrishnan Asan v. Rajan, A.I.R. 1954 Cochin 225, also it has been held that the wife’s lapse from virtue is not a ground for disallowing the maintenance to the child if the father is actually living with his mother. In the decision reported in Mohd Munneruddin Khan v. Lekshmamurnner, (1977)2 An.W.R. 470, it has been pointed out that so far as the minor children are concerned, the father whose responsibility is to maintain them has to seek the custody of the children and maintain them. If he does not do so, it means he neglects or refuses to maintain them. It is also pointed out in the said decision that the husband cannot say that if the children are entrusted to him, if they come to him, he will maintain them and until then the children have no right to claim maintenance. Under Sec.125, Crl.P.C., whenever they file, his liability to maintain his minor children continues unabated. 12. Thus on a careful consideration of the materials on record I find there has been misappreciation of the evidence by the learned Principal Sessions Judge and accordingly the order passed by him in Crl.M.P.No.26 of 1984 is liable to be set aside. 13. In the result, the revision case is allowed and the order passed by the learned Judicial First Class Magistrate in R.C.No.1 of 1983 is restored.