P L D 1965 (W (PLP)

(a) Muhammadan law‑Shia law‑Sunni law‑Appltcation Parties not proved to be Shia, presumed to be Sunni. (b) Criminal Procedure Code (V of 1898), S. 488‑Maintenance allowance for female Muhammadan child aged 6 years No evidence that father had been anxious and making demands for custody of child‑Father applying under S. 25, Guardians and Wards Act (VIII of 1890) for custody of child only after institution of petition for maintenance of child‑Father's plea that no order for maintenance should have been made pending his application for custody of child, repelled‑ [Mst. Hamida Begum v. Syed Mashaf Husain Shah P L D 1958 S C (Pak.) 284 distinguished; Ghulam Husain v.. Muhammad Aslam and another P L D 1961 Lah. 733 ref.]. Briefly the facts giving rise to this revision petition are that on the 13th of December 1962, Mst. Gohar Bano, aged about 5 years, through her maternal‑uncle Ghulam Muhammad, brought an application against her father Khan Muhammad, now petitioner, under section 488, Cr. P. C. for her maintenance. She alleged that she along with her mother were turned out by the petitioner from his house and since then she is living in the house of her maternal‑uncle Ghulam Muhammad along with her mother and, therefore, she claimed Rs. 30 as monthly mainten ance from her father.

2. Khan Muhammad, now petitioner, resisted the application alleging that the minor was six years old and that he had divorced Mst. Amir Bano, his wife, mother of the minor, on the 30th of July 1962, and that she had taken up residence along with the minor in the house of his enemy. After recording evidence produced by the parties, Khan Muhammad Yusuf Khan, Magistrate 1st. Class, Mianwali, by his order dated the 18th of April 1963, ordered the petitioner to pay Rs. 25 per mensem as maintenance to Mst. Gohar Bano who was represented by Ghulam Muhammad. The revision petition preferred by Khan Muhammad was dismissed by the learned Sessions Judge, Mianwali, by his order dated the 20th of July 1963. Khan Muhammad has now come up in revision to this Court.

3. Learned counsel for Khan Muhammad petitioner con tended that no order as to the payment of maintenance allowance should have been passed by the learned Magistrate as the petitioner's application for his appointment as guardian of the minor was pending in the Court of Guardian Judge, Mianwali. In support of his contention he relied upon Mst. Hamida Begum v. Sayed Mashaf Hussain Shah (P L D 1958 S C (Pak.) 284) where it was held: "It may be sufficient for the father to establish that he had all along been anxious and had made bona fide demands for the custody of his minor child whose legal guardianship under the personal law vested in him, for a plea to be advanced success fully on his behalf, in answer to a petition under section 488, Criminal Procedure Code, that in the absence of compliance with his wishes he was not guilty of negligence or refusal to maintain the child, by declining to make an allowance for its upkeep." In order to make the authority cited above applicable to the case, learned counsel for the petitioner referred to his written statement wherein it is stated that the petitioner had made an application under section 25 of Guardian and Wards Act in the Court of the Guardian Judge, Mianwali, for the custody of the child. Apart from his bare allegation, the petitioner did not produce any evidence to show that he had all along been anxious and had made bona fide demands for the custody of his minor child. Learned counsel for the petitioner produced a certified copy of the judgment of Mr. Abaid Ullah Khan, Guardian Judge, Mianwali; dated the 13th of April 1963, arising out of the application given by Khan Muhammad petitioner for the custody of Mst. Gohar Dano which application was dismissed by the learned Guardian Judge. A reference to the record would show that the application under section 488, Cr. P. C., giving rise to this petition, was filed by the minor Mst. Gohar Bano on the 13th of December 1962, whereas the application under section 25 of the Guardian and Wards Act was filed in the Court of the Guardian Judge on the 18th of January 1963. Moreover, there is no material on the record to show that any offer of maintenance was made by the father on the condition that the minor lives with him. On the other hand he applied under section 25 of the Guardian and Wards Act only when an application under section 488, Cr. P. C. was made against him. In his statement recorded at the trial, the petitioner did not say that he had all along been anxious and had made bona fide demands for the custody of his minor child, and the only witness examined by him also did not say so. That being so, I am of the opinion that the authority reported as Mst. Hanuda Begun v. Syed Mashaf Husain Shah is not applicable. Furthermore, in the last para. at page 289 their Lordships observed :‑‑ "Coming to the facts of the present case we find that ever since the divorce took place, the respondent had been anxious to get the custody of his minor son. It is conceded that under Shia Law the father would be entitled to the custody of his minor son after he has attained the age of two years which is the normal weaning period for the child. The minor in the present case is now about 13 years of age. Even in the divorce deed it is stipulated that the child would be handed over to the father. The evidence given by the father in the Magistrate's Court was to the effect that his several demands for the return of the child after the divorce, had proved unavailing. The wife while making her statement in the Magistrate's Court made it clear that she was retaining the child because of her affection for him and that she was not prepared to part with they custody of the child in favour of the husband. The husband had even applied to the Guardian Court for delivery of the custody of the child to him and we understand that the Guardian Court has since decided in his favour and on the 10th of April ‑1958 had ordered that the child be delivered to the father. This fact is not contested before us. It also seems that the child has again joined the mother in spite of delivery of custody of the child to the father under order of the competent Court. In these circumstances, we agree with the High Court that no refusal or neglect on the part of the father to maintain the child was proved. The father, on these facts, was entitled to defeat the application for maintenance on the ground that the child should be allowed to live with him as a condition of his maintenance by the father. Section 488, Criminal Procedure Code, was not, therefore, attracted to the case and no interference is called for by this Court." From the above authority it appears that the boy, who was Shia, was 13 years old and the Guardian Court had ordered the child to be delivered to the father. According to Shia Law, the father would be entitled to the custody of his minor son after he had attained the age of two years. In the present case there is no evidence on the record to show that the parties are Shias and, therefore, the presumption is that they are Sunnis. Moreover, the girl is about 5 or 6 years old and according to the law, the mother is entitled to her custody till she attains the age of fifteen. There is no evidence on the record to show that the father had expressed his anxiety to take custody of the child. The authority of the Supreme Court is distinguishable from the present case and as such is not applicable? "When the father makes an offer of maintenance on condition g that the child lives with him, and he does so only when an application under section 488 of the Code is made against him, it may be presumed that, until then, he himself regarded the mother's custody as being for the welfare of the child." In view of the foregoing discussion and the authority cited above, I find no substance in the argument of the learned counsel for the petitioner that during the pendency of the guardianship case the trial Magistrate should not have ordered the payment of maintenance allowance.

5. Learned counsel for the petitioner next urged that it was for Mst. Gohar Bano to prove that the petitioner had sufficient means to pay the maintenance allowance and he had neglected to maintain the child. In support of the application under section 488, Cr. P. C. Mst. Amir Bano, mother of the minor, and Ghulam Muhammad, maternal‑uncle of the minor, were examined. Musammat Amir Bano did not say as to how much property the father of the minor owned and what was his income. Ghulam Muhammad, maternal‑uncle of the minor, stated that the income of the petitioner was about 40 to 50 maunds of grain. The petitioner, when examined, stated that he owned 30/32 kanals of land. Mughal, the other witness examined by Khan Muhammad stated that the monthly income of the present petitioner is about thirty or thirty‑two rupees and that he owned 84 kanals of land. The evidence on the record therefore, shows that the annual income of the petitioner is 40 to 45 maunds of grain which is not very substantial because after paying Rs. 25 to the minor he will not be left with sufficient amount to look after himself, and so while maintaining the order of the Court below I reduce the maintenance allowance from Rs. 25 per mensem to Rs. 20 per mensem. With this modification the revision petition is dismissed. A. H. Order modified.