1991 P Cr (PLP)

2. Mst. Sakeena Khanum and Mst. Sharif Jan claimed maintenance allowance against Nazir Hussain, respondent, under section 488, Cr.P.C. Mst. Sakeena Khanum is the wife and Mst. Sharif Jan is daughter of Nazir Hussain. The marriage of Nazir Hussain and Mst. Sakeena Khanum took place on August 7, 1970. There were two issues, a son and a daughter, out of the wedlock of the parties. Immediately after the birth of Mst. Sharif Jan, Mst. Sakeena Khanum fell ill on January 20, 1985. As the husband paid no attention towards her treatment, her parents and other relatives took her to the hospital for medical treatment. She remained admitted in C.M.H. Rawalakot for some time and after recovery, instead of going back to her home, she went to the home of her parents. During her stay with her parents, no maintenance allowance was given to her, as such she moved the Magistrate for grant of maintenance allowance. The application was moved on March 7, 1987. It was alleged that the non-applicant having sufficient means, neglected and refused to maintain his wife and daughter, as such they were eligible to claim maintenance allowance in the sum of Rs.1,000 per month, at the rate of Rs.500 each. Nazir Hussain in his written statement repudiated the allegation of negligence and refusal to maintain and stated that he was prepared to maintain his wife provided she lived with him. It was further averred that when Mst. Sakeena Khanum was admitted in C.M.H. for medical treatment, the non- applicant also accompanied her for admission in the hospital. During her stay in the hospital, she was looked after by him. He also made payment for some of the medicines not available in the store of the hospital. It was further alleged that the father of Mst. Sakeena Khanum was in the habit of keeping his daughters to his House and thereafter demanding money from their husbands.

3. Mst. Sakeena Khanum produced Muhammad Siddique, Bagga Khan, Abdur Rehman, father, and appeared' herself as a witness. The aforesaid witnesses stated that Nazir Hussain failed to provide medical treatment to his wife. She was taken to the hospital by her parents who looked after her medical treatment and on recovery and discharge from the hospital, she went with her parents. During the aforesaid stay with her parents, she was not maintained by the husband. Likewise, the minor daughter was also neglected and was not maintained by her father. To rebut the al0rcsaid evidence of the applicants, Nazir Hussain produced Muhammad Sharif Khan, Muhammad Akram and appeared himself as a witness. These witnesses accepted the fact that Mst. Sakeena Khanum left the home of her husband when she was sick and admitted in the C.M.H: It is also accepted that after recovery and discharge from the hospital, she continuously lived with her parents, alongwith her minor daughter. However, both the witnesses stated that they separately approached the father of applicant to persuade him to send his daughter back to the home of her husband, but he avoided it. The evidence of these witnesses was silent on the point whether Nazir Hussain made any contribution towards maintenance of his wife and daughter. Identical is the testimony of Nazir Hussain.

4. Section 488, Cr.P.C. provides the remedy of maintenance of wife and children against husband and father, as the case may be. It postulates that whenever the Magistrate is satisfied that a person having sufficient means, neglects or refuses to maintain his wife or a child unable to maintain itself, he dray order such person to pay monthly allowance for maintenance of his wife or child, at such monthly rate not exceeding Rs.400 in the whole. There is a proviso to subsection (3) of section

488. It contemplates that if the husband is ordered to pay monthly allowance to maintain his wife on the condition of her living with him and she refuses to live with him, the Magistrate may consider such refusal and make an order under this section if he is satisfied that the refusal of the wife to live with her husband, was justified. Subsection (4), further postulates that no wife shall be entitled to receive maintenance 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. Under these provisions, a wife disentitles herself from claiming maintenance allowance on the grounds: (i) if she lives in adultery; or (ii) if she lives separately without any sufficient cause; and (iii) if the spouses live separately by mutual consent. These are the exceptions, which disentitle wife from claiming allowance from her husband under this section. In present case, it is evident from the testimony of the witnesses of the parties that Mst. Sakeena Khanum lived with her husband without any complaint or grievance. When she gave birth to a second child, she fell ill. As according to her, she was not provided medical treatment by her husband her parents, out of affection and consideration, took her to the hospital. Her husband failed to look after her in the hospital and thereafter. May be that the treatment of the husband was not fair and just, but that fact is not established from the evidence, as a valid reason for her to decline to go back home. Mst. Sakeena Khanum admitted in her testimony that she was prepared to go back and live with her husband provided the expenses incurred on her treatment and her maintenance during stay with her parents, were paid by Nazir Hussain. Ordinarily, the husband being responsible to maintain his wife, Nazir Hussain was liable to account for the amount, but the details of the amount of such expenses were not described expressly in the application or the evidence of the parties. In such situation, it is difficult far this Court to accept the claim of Mst. Sakeena Khanum and burden her husband with the liability of maintaining her in house of her parents. Therefore; her stay with her parents and her living separately from her husband is not deemed bona fide.

5. The recommendation for grant of maintenance allowance to the minor child is not disputed by Nazir Hussain. The learned Counsel representing Nazir Hussain raised no objection against the recommendation made by the learned Sessions Judge of fixing the amount of monthly allowance in the sum of rupees three hundred. The recommendation of the learned Sessions Judge on that score is, therefore, accepted. ,

6. The maintenance allowance is ordered to be paid either from the date of the application or from the date of order of, the Magistrate. The Magistrate, in his order, allowed the maintenance allowance from the date of the application. The finding of the Magistrate on this score was not challenged by Nazir Hussain. The learned Sessions Judge equally upheld the decision of the Magistrate whereby the, maintenance allowance was granted from the date of the application. The learned counsel for the respondent has not challenged the finding of the subordinate Courts so as to grant the maintenance allowance from the date of application. The maintenance allowance, therefore, shall be payable to Mst. Sharif Jan from the date of the application. The reference is answered accordingly. MA.K./963-S/AJK Reference answered accordingly