P L D 1969 Peshawar 134 (PLP)

2. On 2‑3‑1966, Abdus Salam moved an application to the Ilaqa Magistrate purporting to be under section 488, Cr. P. C. In this petition it was prayed that since Mst. Khalida Parween had attained 16 yearsr of age, therefore he was entitled to the custody of the child and that the mother should be directed to give the custody to him, or else he should be exempted from payment of the maintenance allowance.

3. Mr. Khalid Mansoor Khan, Magistrate 1st Class, by his order dated 14‑4‑1966, rejected the application holding that the word "child" within the meaning of section 488, Cr. P. C. means "person whether minor or major so long as it remains unable to maintain itself" as ruled in Muhammad Afsar v. Mst. Munwar Jan (P L D 1961 Lah. 199). The order further stated that notwithstanding the fact that Mst. Khalida Parween had attained the age of 16 years, the father was bound to pay the maintenance allowance, and that if he was anxious to get the custody of the daughter "he should seek his redress in the competent civil Court". Abdus Salam feeling aggrieved took up revision petition to the District Judge, but the same proved infructuous having been dismissed by Mr. Muhammad Humayun Khan, Additional District Judge, Peshawar, by his order dated 1‑11‑1966.

4. The learned counsel for the petitioner admitted at the Bar that Abdus Salam had moved an application to the Guardian Judge for the custody of Mst. Khalida Parween on 3‑5‑1966 and the Guardian Judge by his order dated 28‑9‑1966 rejected the application of the petitioner.

5. The learned counsel for the petitioner tried to argue that since there was "a change in the circumstances" within the meaning of subsection (I) of section 489, Cr. P. C., i.e., since Mst. Khalida Parween had attained puberty and even majority at the time of hearing of this petition, therefore the petitioner was completely absolved of the obligation to pay maintenance. It was also argued that the word "child" within the meaning of section 488, Cr. P. C. means a minor child and not a child who has attained majority. The learned counsel contended that since in the Muslim Personal Law father is entitled to the custody of a female child at attaining puberty, therefore the order of maintenance automatically comes to an end after attaining puberty and the words "a change in the circumstances" could reasonably be construed to mean that at attaining puberty the father had a right of custody of the female child.

6. Mr. Qasim Imam, learned counsel for the respondent, on the other hand, argued that once an order for maintenance was passed in favour of a child, the order could not be altered or abrogated by the mere fact that the child had attained puberty or majority. It was argued that the word "child" means a child whether he was minor or major and that the only consideration which had to weigh with the Magistrate in deciding a case of maintenance under section 488, Cr. P. C. was that the father had neglected or refused to maintain the child who was incapable of maintaining it himself. The learned counsel relied on the decisions in (1) Mst. Sughra Begum and others v. Mian Muhammad Din P L D 1957 Lah. 441. (2) Muhammad Afsar v. Mst. Munawar Jan P L D 1961: Lah.

199. In the first authority, Shabir Ahmad, J. held that the word "child" within the meaning of section 488 (1), Cr. P. C. means "a son or daughter irrespective of age". In the second authority A. R. Changez, J. repelled the contention that after the girl had attained puberty she ceased to be a child within the meaning of section 488, Cr. P. C. At page 204, his Lordship observed :‑ A father is bound to maintain his children so long as they are unable to maintain themselves. This is the only condition which is laid down in section 488 of the Code of Criminal Procedure .The age of the child is not very material. If a child having attained the age of majority is unable to earn its living due to lack of physical and mental development, the father is certainly liable to maintain him. For the purposes of section 488, a child whatever his age may be remains a child so long as he is unable to maintain himself." My attention was also invited to the case of Alaf Din v. Mst. Parween Akhtar (1968 S C M R 960 (1)) in which the Supreme Court has granted leave to consider the question whether the word "child" within the meaning of section 488, Cr. P. C. would also cover the case of a child who has attained majority.

7. In view of the importance of the question involving the true meaning of the rule enunciated in Mst Hamida Begum v. Syed Mashaf Hussain Shah (P L D 1958 SIC (Pak.) 284) in my order dated 17th March 1967, the following question was propounded for decision, and Mian Muhammad Yunas Shah and Mr. Zahurul Haq Advocates were requested to assist as amicus curiae "Whether the rule enunciated by the Supreme Court in the decision referred to above can be taken into consideration in an application under section 488, Cr. P. C. and the rule enunciated therein could be said to amount to `A change in the circumstances' within the meaning of section 489 (1), and whether the rule can also be pressed into service under subsection (2) of section 489, Cr. P. C to be `any decision of a competent civil Court?"

8. Mian Muhammad Yunas Shah argued that the rule enunciated by the Supreme Court in Mst. Hamida Begum v. Syed Mashaf Hussain Shah could be pressed into service in the case of a child attaining age of puberty and the father making application to take over the custody of the child provided that in the meantime there is no order of the Guardian Judge disentitling the father to the custody of the child. The learned counsel argued that the order of the maintenance in regard to a child or children passed under section 488, Cr. P. C. could not be altered or varied under subsection (2) of section 489, in that a father cannot maintain a separate suit calling into question his liability to pay the maintenance when an adverse order has been passed by a competent Magistrate under section 488, Cr. P. C.

9. Mr. Zahurul‑Haq who also appeared as amicus curiae, while adopting the arguments of Mian Muhammad Yunas Shah invited my attention to the decision of the Dacca High Court in Omar Ali Sheikh v. Mst. Shamsunahar Begum (P L D 1967 Dacca 575) in which the word "child" was interpreted to be used "with reference to parentage and means son or daughter irrespective of age."

10. I first address myself to the question whether the word "child" means a child irrespective of the age. This question need not detain us long in view of the three decisions referred to above. The learned counsel for the petitioner was not able to cite any authority in which a contrary view has been taken. As already noted, in Alof Din v. Mst. Parveen Akhtar the Supreme Court has granted only leave to appeal and since the point raised has not so far been decided, the two decisions of Lahore referred to in paragraph 6 still hold the field. I, therefore, in respectful agreement with the aforesaid decisions hold that the word "child" would include a child who has attained puberty or majority.

11. After hearing the full arguments, I have formed the opinion that the question propounded by me is of only academic interest in view of the fact that the application of the petitioner for the custody of Mst. Khalida Parveen under section 5 of the Guardians Act, as already stated, has been rejected by the Guardian Judge by his order dated 28‑9‑1966. In other words, even if the rule enunciated by the Supreme Court in Mst. Hamida B Begum v. Syed Mnshaf Hussain Shah could be pressed into service even at the stage of the execution of the order maintenance, the fact that the petitioner's right to custody has been rejected by the Guardian Judge, the matter stands concluded and that of maintenance is to be enforced.

12. In the result, the revision petition fails and is dismissed. A. E. Petition dismissed.