1981 P Cr (PLP)

The Additional Sessions Judge, Poonch has made this reference on 19th April, 1980, whereby judgment and order of the trial Court, dated 31st May, 1979, is recommended to be set aside. Mst. Sharifa Bi, who is wife of the petitioner, brought an application under section 488, Cr. P. C. for payment of maintenance allowance in her favour and in favour of Abdul Rauf and Abdul Shakoor, minor sons. The application was instituted on 8th November, 1978. A notice was issued to the non-applicant-petitioner. It was reported that non-applicant petitioner had left for Pakistan. His whereabouts were not available. Ultimately, on 18thFebruary, 1978, Shukar Din, his cousin accepted service as attorney .of the non-applicant petitioner. The petitioner was represented in the trial Court by Raja Muhammad Yunus Khan Advocate. Objections were filed wherein the allegations of failure to maintain the applicants-respondents were denied. After recording evidence of both the parties, trial Court allowed the application and granted a sum of Rs. 350 p. m. as monthly maintenance allowance, in favour of the appli cants-respondents against the non-applicant-petitioner. The petitioner challenged the order of the trial Court before the Addi tional Sessions Judge who accepted the petition and recommended to set aside the order of the trial Court on two grounds:- (i) that the applicants failed to prove failure and negligence of peti tioner-non-applicant to maintain them; (ii) that the evidence was recorded in absence of non-applicant-- petitioner. Provisions of section 488 (6), Cr. P. C. were ignored by the trial Court. Thus, failure to observe the provisions resulting in illegality, vitiated the entire proceedings. A notice was issued by this Court to the parties. Isam Din, as usual, was not available. It was reported that he was living in Pakistan and his whereabouts were unknown. Mst. Sharifa Bi was served and she failed to appear. A perusal of the record shows that it was claimed in the application that Isam Din who was the husband of applicant No. 1 and father of applicants 2 and 3 had failed to maintain them for the last 8 years. A sum of Rs. 400 p. m. was required for maintenance of the applicants. Thus a prayer was made for grant of allowance under section 488, Cr. P. C to the tune of Rs. 400 p. m. In written objections, non-applicant-petitioner repudiated the allegations and averred that he wanted to take the appli cants to Karachi. Mst. Sharifa Bi, his wife refused to accompany him. This was the cause of bringing the application. Rukan Din, Abdul Din and Mst. Sharifa Bi, who appeared for the applicants, deposed that the non-applicant-petitioner was living in Karachi. He had not provided any maintenance to the applicants. The witnesses produced on behalf of the non-applicant-petitioner, also admitted that the non-applicant was living in Karachi and he wanted to take the applicants with him but on refusal of applicant No. 1 differences arose between the parties. It was also deposed that occasionally, the non-applicant sent some amount froth Karachi to the applicants. Under section 488 (1), Cr. P. C. it was provided that a Magistrate was empowered to direct payment of monthly allowance for maintenance of a wife or child provided the person having sufficient means, neglected or refused to maintain such wife or child. It is evident from the provi sion that the applicants had to prove negligence or refusal of the non -applicant to provide maintenance allowance. In the present case, it was an admitted fact that parties permanently resided at Dholi, Tehsil Bagh. Isam Din, petitioner left his residence and went to Karachi. He laid condition on the applicants to accompany him to Karachi, and on failure to comply with the condition, he failed to maintain them. In order to prove refusal or negligence, it was for the applicants to show that the non-applicant-petitioner refused or neglected to maintain them. In the first place, refusal is to be proved by express denial to maintain or by conduct of the non-applicant. Similarly, negligence could be proved by direct or indirect evidence showing that the non-applicant, despite having means, acted in a manner resulting in negligence to maintain his dependants. In the present case, as stated earlier, Isam Din left his dependants at Dholi and went to Karachi. There is no evidence to show that he ever cared to maintain his dependants, rather it was claimed on behalf of the petitioner that the petitioner laid a condition that the dependants could accompany him to Karachi. Ordinarily, the petitioner could direct his dependants to go with him but in presence of the exception pleaded by Mst. Sharifa Bi, whereby it was shown that the petitioner was leading an immoral life as he had opened a brothel house and was a pimp, the peti tioner could not compel applicants to accompany him to Karachi to lead an immoral life like him. He wanted Mst. Sharifa Bi to be a partisan in immoral and illegal trade. Thus, in my view, offer to provide mainte nance on condition that dependants lived with petitioner in Karachi, cons tituted negligence. Imposition of condition tantamounts to denial. This was so, when Isam Din was shown to be living an immoral life in Karachi. The apprehension of Mst. Sharifa Bi was well founded. She was not obliged to obey her husband to live an immoral life. Thus, applicants successfully proved negligence and refusal of petitioner to maintain them. The learned Additional Sessions Judge held that evidence was recorded in absence of Isam Din, petitioner. This departure tantamounts to an illegality and vitiated the proceedings. It is correct that subsection (6) of section 488, Cr. P. C. provided that all evidence was to be recorded in presence of the husband or father and in case his personal attendance was dispensed, in presence of his pleader. By aforesaid provision, the Legislature intended to protect and safeguard the interests of a fattier or husband who had to suffer a fiscal liability. It was imperative to effect service on the father or husband, as the case may be. Once the service was effected, failure of such father or husband to appear in the Court, did not necessitate postponement or keeping in abeyance further proceedings. In such a case, trial Court was competent to proceed ex parte. Similarly, where service was affected, on failure of husband or father, to put personal appearance, representation through counsel or attorney, was sufficient to comply with the provision of law. It may be stated here that in proceedings under section 488, Cr. P. C. non-applicant was not an accused. A Court could not compel his personal appearance on the date of recording of evidence. As in case of absence after service, Court could proceed ex parte, where non-applicant appeared through counsel, Court, could not compel him necessarily to personally appear so that evidence was recorded. Dispensation of personal appearance could be made on the request of the party. Where no such request was made, Court could not, suo motu, dispense with personal appearance. If the intention was to dispense with personal appearance suo motu, failure to pass an express order to that effect would not make any difference, a; proceedings in absence of a party, impliedly lead to an inference that presence was dispensed with. In the present case, not only written objec tions were filed, five witnesses also appeared on behalf of the non-appli cant-petitioner. This is just to show that non-applicant-petitioner, at no stage, felt aggrieved on taking evidence in his personal absence. A perusal of the grounds of the revision petition also shows that no such objection was raised by the petitioner even in the grounds of his petition. It was undesirable for a Court to quash proceedings, particularly under sec tion 488, Cr. P. C., on a technical ground. The provisions of section 488, Cr. P. C. are salutary provisions of the Code in the sense that the Legislature safeguarded and protected wives and children by creation of statutory right for their maintenance allowance. Thus, keeping in view the spirit of law, I am not persuaded to quash proceedings on the basis of a technicality. In Azad Jammu & Kashmir, amendment relating to quantum of allowance has not been introduced. The maximum allowance provided under section 488, Cr. P. C. for an applicant is Rs. 100 p. m. In the present case, there are three applicants. Therefore, they are entitled to allowance of Rs. 300 p. m. The trial Court and learned Additional Sessions Judge allowed the amount of allowance @ Rs. 350 p. m. under the impression of an amendment made in Pakistan where monthly allow ance was enhanced to Rs. 400 p. m. In view of the aforesaid observations, I am not persuaded to accept the recommendation of the learned Additional Sessions Judge, Poonch The reference is answered accordingly. Reference answered.