P L D 1965 (W (PLP)

(a) Criminal Procedure Code (V of 1898), S. 488--‑Word "child"

Means offspring of person whether major or minor

Maintenance to be granted where child unable to maintain itself either on account of minority or being engaged in receiving education‑--Father held responsible to maintain daughter aged 23 years studying in College‑ [Sarswati v. Madhavan A I R 1961 Kerala 297 dissented from]. Sarswati v. 'Madhavan A I R 1961 Kerala 297 dissented from. Ghulam Hussain v. Muhammad Aslam P L D 1961 Lab. 733 and Mst. Sughara Begum v. Mian Ahmad Din P L D 1957 Lab. 441 ref. (b) Criminal Procedure Code (V of 1898), S. 488‑Word "maintenance"‑Includes cost of living as well as education

[Shanno Devi v. Dia Ram A I R 1933 Lah. 1026 dissented from]. Date of haring: 7th December 1964. Mst. Ismat Ara, Zahida, Yasmin Akhtar, three daughters, and Nasim and Salim, two sons of Mr. Ferozeuddin Vehra, were awarded maintenance under section 488, Cr. P. C. by Mr. Mahmood Khan, Magistrate, 1st Class, Lahore, by leis order dated. the 19th of December 1962. The mother of the children was also awarded maintenance. The learned Magistrate directed that Rs. 150 per month be paid to the children for their education and Rs. 200 be paid to all the petitioners for their maintenance. The parties went up in revisions before the learned Additional Sessions Judge which were dismissed. Mr. Feroze Din Vehra filed a revision petition in the High Court as well which was dismissed in limine by my order dated the 27th of June 1963. Mst. Wazir Begum petitioner has filed this revision petition and she has asked for the following relief:‑ (1) That the learned Magistrate should have awarded maintenance from the date of the application. (2) That Mst. Parveen Akhtar, one of the petitioners was accidentally ignored by the learned Magistrate and no maintenance had been awarded to her, she may be awarded maintenance. (3) That the amount of maintenance should be divided amongst the children and the mother so that if any one of them is ever disentitled to receive the maintenance it may be separately known as to how much amount was due to such a person.

2. As regards the first prayer I am not inclined to interfere in the exercise of discretion by the learned Magistrate, especially after almost two years of the final order. As regards the second prayer it has been urged by the learned counsel for the respondent that Mst. Parveen Akhtar was aged about 23 years and consequently she does not fall in the definition of the word "child" as used in section 488, Cr. P. C. She being a major was not entitled to any maintenance. This fact is not denied that she is at present a student in fourth year. The learned counsel relying on Sarswatt v. Madhavan (A I R 1961 Kerala 297) argues that the word "child" as used in section 488, Cr. P. C. referred to a minor child only. I am not prepared to give this interpretation to the word 'child' as used in section 488, Cr. P. C. In comparison to the parents a son or a daughter is always a child irrespective of his age. Under section 488, Cr. P. C. the; conditions for grant of maintenance is that the child must be unable to maintain himself. Such a disability may arise either due to minority or due to being engaged in receiving education as is the case here. Undoubtedly Mst. Parveen Akhtar who is studying in fourth year is unable to maintain herself. Thus the father responsible to maintain her. This question was considered in a Full Bench Ruling of this Court reported as Ghulam Hussain v. Muhammad Aslam (P L D 1961 Lah. 733) and it was also considered in Mst. Sughara Begum v. Mion Ahmad Din (P L D 1957 Lah. 441). The consistent view of this Court is that the word "child" in section 488 (1), Cr. P. C. means a son or a daughter irrespective of age, Thus I hold Mst. Perveen Akhtar is entitled to maintenance. She will be entitled to receive Rs. 50 as maintenance from today which will include her educational as well as other expenses. As regards the last prayer of the petitioner the total amount of maintenance awarded to six of them is Rs.

200. Out of this Rs. 50 will be regarded as the amount of maintenance per month for Mst. Wazir Begum petitioner while Rs. 150 will be rateably distributed amongst Ismat Ara, Zahida, Yasmeen Akhtar, Nasim and Salim.

3. The learned counsel relying on Shanno Devi v. Na Ram (A I R 1933 Lah. 1026) contended that under section 488, Cr. P. C. no amount can be granted to a petitioner for his education. I am afraid I cannot accept this interpretation. In fact the remarks that in criminal law maintenance would not include the cost of College education occurs in the reference made by the Sessions Judge. So far as the order of the High Court is concerned, it does not deal with this point specifically. The order is only to this effect "I set aside the order of the Magistrate 1st Class and substitute the order recommended by the learned Sessions Judge. The parties can always move the Magistrate again while there is a change of circumstances." In my humble view the word "maintenance" not having been defined in the Criminal Procedure Code would include the cost of living as well as proper education according B to the status of the family to which the petitioner belonged. I do not accept this contention of the learned counsel for the respondent.

4. The result would be that Mst. Wazir Begum, Parveen Akhtar, Ismat Ara and Salim would receive monthly Rs. 50 each. Yasmeen Akhtar, would receive monthly Rs. 60 while Zahida and Nasim would get monthly Rs. 70 each. The parties will bear their own costs in this Court. K. B. A. Petition accepted.