P L D 1957 (W (PLP)

KAIKAUS, J.‑

Mst. Hamida Begum the respondent before me, filed an application against the petitioner, Mushaf Husain. under section 488, Criminal P. C., claiming maintenance for herself as well as for her son, Najmul Hasan, aged about 11 years. The petitioner stated in reply to that application that he had already divorced Mst: Hamida Begum and that so far as the son was concerned, it was he who was entitled, to the custody of the son and that he had never neglected or refused to maintain the child. He stated further that he had already filed an application under section 25 of the Guardians and Wards Act for the custody of the child. This application, it appears had been filed after the application under section 488, Criminal P. C. Mst. Hamida Begum denied that there had been any valid divorce. The learned Magistrate, who heard the application for maintenance, came to the conclusion that Mst. Hamida Begum had been divorced and he dismissed the application as regards her maintenance but passed an order for a monthly allowance of Rs. 60 for the maintenance of the son. A revision application was filed before the Additional Sessions Judge Lahore, by Mushaf Husain and was rejected. He has now come to the High Court in revision. The main contention put forward before me on behalf of the petitioner is that as the petitioner is entitled under the personal law to the custody of the child, there can be no liability to pay maintenance under section 488, Criminal P. C. Out of this contention arise a number of arguments to which I will presently refer. It may be mentioned here that the parties are Shias and that under the Shia law the father is entitled to the custody of a male child when it attains the age of two years. To attract the application of section 488 of the Code of Criminal Procedure, it is necessary that the father should have neglected or refused to maintain the child. The first argument ‑put forward by learned counsel for the petitioner is that neglect or refusal to maintain the child necessarily involves a right on the part of the child to maintenance. Learned counsel refers to parallel cases dealing with section 2 of the Dissolution of Marriage Act, wherein the words "has neglected or failed to provide for maintenance" occur, and argues that, as in those cases it has been held that a neglect or failure necessarily implies the existence of a right on the part of the wife to be maintained, a similar interpretation should be placed on the words "neglects or refuses to maintain" in section 488, Criminal P. C. According to learned counsel, in order that an application under section 488 for the maintenance of a child may succeed, it must be established that under the personal law applicable to the parties, the child is, under the circumstances, entitled to receive separate maintenance from the father. Neither on the authorities nor on the reading of section 488 can this contention be supported. As pointed out by Mahmood J. in In the matter of the petition of Din Muhammad (I L R 5 All. 226) this section creates a statutory right to maintenance irrespective of nationality or creed. As the personal laws of adherents of various religions do not contain uniform provisions as to maintenance of wives and children the right created by this section will obviously not coincide with the right given by personal law in all cases. If we compare this section with Muslim Law it will be found that while in some cases it confers a right which the Muslim Law does not recognise, in others it refuses to recognise a right to maintenance where Muslim Law will grant one. It will be observed that the section gives even an illegitimate child a right to maintenance. Under Muslim Law an illegitimate child has no right of maintenance against its natural father. It will also be‑seen that according to this section if a wife refuses to live with her husband she is not entitled to maintenance unless there is "sufficient cause" but this suffi cient cause has not the same import as it `would have under Muslim Law. In a number of cases of which I may refer to Sadar Din v. Mst. Suban (6 P R 1888) and Muhammad Aziz Ullah v. Abdul Halim (A I R 1935 Oudh 285), it has been held that non‑payment of a prompt dower, although a good ground for refusing to live with the husband if the point arises in a civil suit, is not `sufficient cause" for refusal to live with the husband so far as section 488, Criminal P. C. is concerned, and the wife, in such a case, would not be entitled to separate maintenance. I may also, in this connection refer to a recent amendment of the Criminal P. C., in India whereby it has been provided that the fact that a husband has contracted a second marriage would be "sufficient cause" for the wife to refuse to live with him within the meaning of this section, although under Muslim Law this would not be a valid ground. It cannot be said that this amendment is inconsistent with the original section. The argument that it is only where under the Muslim Law a right of maintenance exists that section 488 will apply is really an impossible one and it appears to me that it is only because of the judgments relating to section 2 of the Dis solution of Marriages Act, which lay down that neglect or refusal to maintain implies a right to maintenance that this argument has been advanced. But it should be borne in mind that the fact that these words have received a particular interpretation in the interpretation of a section of the Dissolution of Marriages Act, does not afford any good ground for a similar interpretation of section 488, Criminal P. C. The Dissolution of Marriages Act is intended to codify only the provisions of the Muslim Law and it is not to be interpreted in a manner inconsistent with that law.) This consideration is out of place while interpreting section 488, Criminal P. C. A subsidiary argument has been raised that if section 488 gives a right to maintenance even in cases where the Muslim Law disentitles a person to maintenance, section 488 is overridden by section 2 of the Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951, because by virtue of that section the personal law has to be applied in all questions relating to maintenance. The argument is based on a misapprehension. Section 5 of the Punjab Laws Act, which is still applicable, provides that personal law will be the rule of decision in questions relating to the subjects mentioned therein, in the absence of a statute or custom to the contrary. The object of the Muslim Personal Law (Shariat) Application Act was not to override any statute but to abrogate custom where there was a clash between custom and personal Law. The original section 5 of the Punjab Laws, Act still remains applicable except to the extent to which it has been repealed by the Muslim Personal Law (Shariat) Application Act, and the only extent to which it has been repealed is that Muslim Law takes the place of custom in respect of the subjects mentioned in section 2 of the Muslim Personal Law (Shariat) Application Act. There can be no doubt that on the law as it stands, the provisions of Muslim Law do not override any statute. If I were to accept the argument of the learned counsel a large number of statutes, in which I might include the Punjab Colonization of Govern ment Lands Act, the Punjab Tenancy Act. and the Punjab Jagirs Act, would be ultra vires and no longer law. I now come to the substantial question that falls to be decided in the present revision petition which is if the father be entitled under the ordinary rules of Muslim Law to the custody of the child and he be prepared to maintain the child if it is handed over to him, or to go a step further, he may be wanting that the child should live with him, is there a neglect or refusal to maintain within the meaning of section 488, Criminal P. C., if he is refused the custody of the child by the person in whose custody the child is and therefore does not in fact maintain the child ? It will be proper to review in brief the cases of the Punjab Chief Court and the Lahore High Court in dealing with this matter. The earliest case is Man Singh v. Mst. Dharamon and others (18 P R (Cr.) 1894). In that case an application had been put in on behalf of the wife as well as two minor sons. The head‑note of the case gives the impression that according to that judgment whenever the father says he is prepared to maintain his child on condition that it lives with him there can be no neglect or refusal to maintain. The body of the judgment, however, makes it clear that the learned Judges were at the same time relying on the prima facie right of the father to custody, and it is on the basis of this prima facie right that they found the absence of a neglect or refusal to maintain. The learned judges say: "A father is prima facie the guardian of his minor children and entitled to their custody, as well as to that of his wife he is not under an obligation to make them a money allowance for their maintenance apart from himself, merely because he is the husband. or the father and by refusing to do so he does not refuse to maintain them. He is in our opinion within his right when he offers, in answer to an application by a wife, or child, under section 488 to maintain them on condition that they live with him. When he does that it cannot be said that he refuses to maintain them". The learned Judges were of the opinion that if the mother became entitled to the custody of the children the application should succeed, but that the Criminal Court was not competent to enter into an enquiry into the fitness or unfit ness of the father to act as a guardian, and, therefore, it was for the mother to approach the Guardian Court and secure an order appointing her the guardian of the minor sons. In Sardar Muhammad v. Nur Muhammad (22 P R (Cr.) 1917), it was held that even though in the past a father had neglected to maintain his child if in answer to an application under section 488 he offered to maintain the child on condition that it lived with him an order under section 488 should not be passed against him. It was pointed out, however, that if the friends of the minor move the Guardian Court and got some person other than the father appointed a guardian, they will be entitled to claim maintenance from the father. Relying upon these two cases, Campbell, J., in Sultan v. Mahtab Bibi (A I R 1926 Lah. 536), accepted the recommendation of a Sessions judge for setting aside an order of maintenance against a father, on the ground that the father was prepared to maintain the child if it lived with him. There is no judgment by the learned judge himself except that he set aside an order as recommen ded by the Sessions Judge. In Jagan Nath v. Koshallia Devi (A I R 1927 Lah. 430), Shadi Lal, C. J. set aside an order of maintenance passed against a father anxious to obtain the custody of his child on similar grounds. In Mst. Sarfraz Begum v. Miran Bakhsh (A I R 1928 Lah. 543) an application had been made for maintenance of a female child aged only eight or nine months. Jai Lal, J. held that as it was the mother who was entitled to custody, the application was maintainable. 18 P R (Cr.) 1894 and 22 P R (Cr.) 1917 were cited before the learned judge and were distinguished on the ground that in those cases prima facie right of the custody was with the father. In Mst. Zauhra Bi v, Muhammad Yusaf (A I R 1930 Lah. 1043) an application had been made for maintenance in respect of a son aged three years. Parties were Muslims. Jai Lal, J. held that the refusal of the father to maintain the child unless it lived with him was a refusal under section 488 because the right of custody belonged to the mother. All these came up for review before a Division Bench of the Lahore High Court in Allah Rakhi v. Karam Ilahi (A I R 1933 Lah. 969). In that case an application for maintenance had been made in respect of the minor daughters of a Muhammadan who were living with their mother. The contention before the learned Judges was that if the father was prepared to maintain the children in case they lived with him there can be no neglect or refusal to maintain them. The learned judges held that in a case where the mother was the lawful guardian of the minors and the father was not prima facie entitled to demand their custody, there is no reason why an order under section 488 should not be made against the father. The learned Judges held that it was not the function of the Criminal Court to decide questions of custody, but there was no reason why it could not take notice of the fact that mother was entitled to custody of the children. The learned judges said:‑

"It was urged that the mother may be disqualified to be the guardian in certain circumstances (vide para. 258 of Mulla's Principles of Muhammadan Law). But, if she is so disqualified it is open to the respondent to move a competent Court to appoint him or some one else as the guardian of the daughters. Until he does so, she is the natural guardian and there is nothing in the provisions of section 488, Criminal P. C, to show that he is entitled to demand the custody of the daughters from their lawful guardian as a condition precedent to maintaining them. To place any such construction on that section is in fact likely to defeat its object. For in that case a father may easily be able to escape liability for the maintenance of his children by the simple device of demanding their custody when he knows full well that owing to their infancy or other reasons the mother would be unwilling to entrust them to his care. It is true that it is not the function of a Criminal Court to decide questions as regards the right to guardianship, of children but there is no reason why it should not take notice of the fact that the mother is (as in this case) their lawful guardian under the personal law and that the father is not prima facie entitled to demand their custody. In my opinion an offer by a father to maintain the children provided they are entrusted to his custody in such circumstances is tantamount to a refusal to maintain them within the meaning of the provisions of section 488, Criminal P. C., as held in Emperor v. Aysha Bai ((1904) Bom. L R 536)". After a full consideration of arguments for and against, I have reached the conclusion that‑the father being the natural guardian of his children, their can be no neglect or refusal to maintain on the part of the father if he is willing to maintain the child on condition that he lives with him. The right of the father to custody is conceded by all systems of la w and is recognized by section 19 of the Guardians and Wards Act, which applies to persons of all creeds (subject to a certain qualification in the case of European British subjects) and which enacts that no application for appointment of the guardian of person of a minor lies if the father of the minor is alive and is not unfit to be his guardian. The position of the father is not weaker, in any case, than that of a guardian appointed by the Guardian Court. It may perhaps save some confusion of thought if we regard the father as a person appointed guardian of person by the Court while determining questions of custody and maintenance. If a person who had been appointed guardian of person of a minor demanded the custody of the minor and was prepared to maintain the minor if he lived with, him but was not prepared to pay a cash allowance for his maintenance to the person with whom the minor was living it would not be reasonable to say that he had neglected or refused to maintain the minor. The above proposition is subject to the qualification that in a case where the natural guardianship of the father is limited by the right of custody of the mother it is not open to the father to insist that he would maintain the child only on condition of his living with him. In such a case there will be a neglect or refusal to maintain if the father refuses to pay for the maintenance of the child. It may be urged F that the Criminal Court is not a Court which should deter‑mine the right of custody. But there is no other reasonable alternative open except that the Criminal Court should have regard to the prima facie right of custody. Any other) interpretation of the section may lead to great hardship. For the mother, though entitled to custody of the child, would be forced to approach the Guardian Court in the first instance while the need for maintenance may be urgent. There can be no objection to our interpreting the words "neglect or refusal to maintain" as including a case where the father refuses to pay for the maintenance of the child who is living with his mother, when the mother is, according to the Personal Law prima facie entitled to the custody of the child. The Criminal Court should, therefore, award maintenance in such cases leaving it to the father to approach the Guardian Court for an order for custody of the child under section 25 of the Guardians and Wards Act, if he challenges the mother's right to custody. The child is, in the present case, 11 years of age, Parties are Shias, and according to Shiah Law, the mother loses the right of custody of a male child after its attaining the age of two years. The father is, subject to the order of the Guardian Court, entitled to the custody of the child and I have no option, therefore, except to set aside the order of Maintenance in respect of, the child. An application for custody of the child has already been made by the father. If the Guardian Court refuses to hand over the child to the father on the ground: that it is not for the welfare of the child the mother would be entitled to put in a fresh applica tion for maintenance. This application is accepted and the order of the learned Magistrate awarding maintenance is set aside. K.B.A./A.H. Application accepted.