P L D 1964 (W (PLP)

Respondent in person. I. H. B. Hanafi for the State. Date of hearing: 11th June 1964. Mst. Saira Khatoon made an application on the 28th of August, 1961 claiming Rs. 100 as maintenance for herself and her seven children from Safdar Ali, her husband. The remained pending till on the 31st of January, 1963 it came up before the Additional City and Cantonment Magistrate 1st Class, Quetta, who recorded the statement of Safdar Ali on that day asking him if he would like to have a de novo trial. Safdar Ali claimed a de novo trial, Thereafter the complainant examined Mst. Farooq Sultana her daughter, Nargis another daughter and gave her own statement in support of the application. These statements were recorded on the 12th of March 1963. The case was adjourned to different dates and ultimately on the 4th of April 1963, the statement of Safdar Ali was recorded in the form of questions and answers. The proceeding under section 488, Cr. P. C. are neither an enquiry nor a trial consequently, section 350, Cr. P. C. is not applicable to these proceedings. Secondly, the proceedings although under the Criminal Procedure Code are in the nature of the quasi‑civil proceedings, the respondent is not an accused and he need no be examined as such. After examination of the petitioner's evidence the respondent should be afforded an opportunity to examine his evidence and it would be for the respondent to examine himself as his own witnesses and to produce such other witnesses as he may like. The respondent in such a petition would be competent witness to make a statement on oath. I am sure these instructions will be kept in view by the learned Magistrate in proceedings under section 488, Cr. P. C.

2. The learned Magistrate ultimately passed an order on the 3rd of May 1956 whereby he awarded Rs. 80 p. in. as maintenance for the following four children of the petitioner:‑

1. Nargis aged 12 years.

2. Sher Ali aged 8 years.

3. Sharafat Ali aged 6 years.

4. Javid Ali aged 3 years. The petitioner gave up her claim as regards the other children for various reasons when who ease was finally heard and decided. Safdar respondent filed a revision petition before the learned Sessions Judge who has recommended that the amount of maintenance be reduced from Rs. 50 for only three of the minors, as in the meantime Sharafat Ali had gone over to his father. Safdar Ali had filed a revision petition also and this order will dispose of the reference as well as the revision petition.

3. The learned counsel for the petitioner contended that the petitioner (Safdar Ali) was not given an opportunity to lead evidence in the Court of the learned Magistrate. I am not prepared to accept this contention of the learned counsel because if the petitioner was anxious to lead any evidence he could have produced his witnesses on any one of the dates when the case was adjourned after the close of the evidence of Mst. Saira Khatoon respondent. The case was argued before the learned Magistrate on the 29th of April 1963 and it was fixed for the 30th for orders and on the 30th the learned Magistrate heard further arguments and directed Mst. Saira to produce Javid Ali on the 3rd of May 1963, so that his age could be estimated. This would indicate that on the 30th of April 1963, the petitioner took up the plea of not accepting the paternity of Javid Ali and thereupon the learned Magistrate ordered the production of Javid Ali in Court. If the petitioner was anxious to lead any evidence he could have asked for it or put in an application for the evidence to be recorded. He did not do so. It clearly means that he never wanted to adduce any evidence in rebuttal. However, it is clear from his statement that he admitted that he had not maintained his children for the last three years prior to the date his statement was recorded. When he was questioned if he had anything else to say he had stated that he had given a shop to be run by his son in order to provide maintenance to themselves and to the respondent and that it was about three years back that he had divorced his wife, therefore, she was not his wife. He expressed his willingness to maintain his children if they were given to him. After this statement there was no occasion or necessity for the petitioner to lead any evidence and that is why he did not ask for it. The other contention of the learned counsel is that the statement of the petitioner was not fully recorded because he did not own the paternity of Javid Ali which fact was not recorded by the learned Magistrate. This contention of the learned counsel has no basic because in the cross‑examination of Mst. Saira or her daughters no question was asked as regards the paternity of Javid Ali. As already referred to this question seems to have been, for the first time, raised on the 30th of April 1963. The learned Magistrate thereupon asked Mst. Saira to produce Javid Ali in Court and in the order that was ultimately passed on the 3rd of May 1963 the learned Magistrate came to the conclusion that the assertion of Safdar Ali that Javid Ali was not his son was negatived by the age of Javid Ali and the date on which the divorce was pronounced. In those circum stances, I consider that the learned Magistrate was justified in awarding maintenance to the minor children of the respondent. The learned Sessions Judge has not fixed maintenance separately for all the children. So far as Sharafat is concerned, undoubtedly the respondent would be entitled to receive maintenance till the date when he left her and went over to the petitioner. No definite date can be fixed. However, Mst. Saira admitted before the learned Sessions Judge that Sharafat Ali was not with her on that date. Consequently the respondent would be entitled to receive maintenance for Sharafat Ali till the 20th of August 1963 the date of the order of the learned Sessions Judge. So far as the rest of the minors are concerned, the learned trial Magis trate has awarded maintenance at the rate of Rs. 20 p. m. In view of the fact that the petitioner has admitted his pay as Rs. 160 p. m. and also that he was running a grocer shop; on Togi Road, Quetta, the amount of maintenance awarded cannot be said to be excessive, because of the high prices of the necessities of life prevailing these days. The revision petition is dismissed and the reference made by the learned Sessions Judge is accepted to the extent indicated above. S. Q. Petition dismissed.