P L D 1954 Peshawar 13 (PLP)

MUHAMMAD SHAFI, J.‑Mst. Sultana was married to Umara Khan about 2‑3 years ago. She has from him a daughter by the name of Rst. Pukhraj, aged about one year. The couple lived together for sometime when they parted company. On 24th April 1.950, Umara Khan lodged a report in Batagram Police Station that his wife Mst. Sultana along with her infant daughter at the instance of her father bad left his house, taking away with her clothes and jewelry etc. On 2nd April 1951, Mst. Sultana put in an application under section 488 Cr. P. C. on her behalf as well as on behalf of her daughter Mat. Pukhraj, stating that Umara Khan had refused and neglected to maintain them, and, that an order under the above section be passed. The respondent denied his liability to pay the maintenance of his wife and daughter. Mst. Sultana in support of her complaint came herself into the witness‑box, and also produced Faqir Muhammad and Alam as her witnesses. All these three witnesses stated at the trial that Jirgas were sent on behalf of Mst. Sultana to the respondent but he refused to maintain the petitioner. Umara Khan came himself into the witness‑box and stated that he had taken several Jirgas to the father of Mst. Sultana, but the latter showed his ignorance about the separation, by which perhaps Umara Khan meant the parting of company between the husband and wife. Arsallah and Abdul Ghani appeared as witnesses for Umara Khan. The former stated that he had been sent by the respondent to the father of Mst. Sultana In a Jirga, but the latter informed him that Mat. Sultana was not with him. Abdul Ghani averred that he one day saw the sons of Umara Khan respondent crying, who on inquiry told him that Mst. Sultana had been taken away by her father. On this evidence the learned Magistrate 1st Class Peshawar, arrived at the conclusion that there was nothing on this record to show that Mst. Sultana had been turned out of her house by the respondent, or that the latter was refusing or neglecting to maintain her. He, however, held that Umara Khan was legally bound to maintain his daughter, who was of tender age, and consequently fixed Rs. 13 per month as her maintenance. Umara Khan went up in revision against this order. The learned Sessions Judge Peshawar, has forwarded the case on to this Court with the recommendation that the order of the learned trial Court should be set aside so far as it fixed the maintenance of Mst. Pukhraj, because it was not proved on this record that Umara Khan had refused or neglected to maintain her. The only question before me for decision is whether the order of the learned trial Court fixing the maintenance of the child is correct according to law. The legislature in section 488 Cr. P. C. has laid down two conditions precedent to making a person liable to pay the main tenance of his wife or child ; they are that he should have either neglected or refused to maintain them. The word " refusal " signifies the denial of doing anything which is demanded of a person, i.e. if a wife asks the husband to give maintenance to her and the latter denies it to her, this act of the husband amounts to his refusal. In the case before me it has been found by the learned trial Court and I see no reason to disturb its finding that Mst. Sultana never demanded the maintenance from her husband so as to entitle her to say that her husband bad refused to maintain her. Again, so far as Mst. Sultana is concerned it is found by the learned trial Magistrate and not challenged by Mst. Sultana that she of her own accord left her husband's house, and, therefore, is herself responsible for being not maintained by him, and so the question of his neglect to maintain her does not at all arise. As regards Mst. Pukhraj, she is too young, and, therefore, incapable of making a demand for her maintenance on Umara Khan, the question of his refusal consequently does not arise. In her case all that has to be seen is whether Umara Khan has neglected to maintain Mst. Pukhraj. It cannot be denied that it is the duty of every father to maintain his child Sol long as that child remains a minor. Under the Muslim Law, by which the parties are governed, a mother is entitled to keep the custody of the girl until she attains puberty. The father has no right to demand the girl from the mother. while on the other hand, in my opinion, he is duty bound to maintain her even though the child remains with the mother. If the father forbears his duty n regard to the maintenance of the child irrespective of the fact, where that child is, or, to put in other words, fails to perform his duty towards the maintenance of the child, he neglects to main?tain the child, giving jurisdiction to a Magistrate under section 485 Cr. P. C. if moved in that behalf to compel the father to do his duty. The learned counsel for Umara Khan has invited my atten?tion to Sita Devi v. Harnarain, reported as (A I R 1930 Lah. p. 886) ‑in which it was held that in order to give jurisdiction to a Magistrate to take proceedings under section 488 Cr. P. C., the first essential is to find that the respondent has neglected or refused to maintain the person for whose maintenance an allowance is asked for with this proposition of law I entirely agree. I am, however, unable to agree with Tek Chand J., that if it is in the interest of a child on account of his tender age to be left with the mother, then the father till be is able to get the custody of the child from the Civil Court, cannot be compelled under section 488 Cr. P. C. to pay the maintenance to the child, because the Criminal Court does not derive any jurisdiction on account of that fact to pass an order under that section. Tek Chand J. in that case has not discussed the meaning of the word" neglect'. If it is in the interest of the son to remain with his mother on account of his tender age and the father forbears to maintain him, then, in my view, he neglects to maintain the child, and this does give jurisdiction to the Criminal Court to pass an order under section 488 Cr. P. C. For the reasons given above I am afraid I do not see eye to eye with the learned Sessions judge, and, therefore, reject his recommendation, and dismiss the petition of Umara Khan, praying for the reversal of the order of the learned trial Magistrate. Orders announced A. H. ??????????????????????? Petition dismissed.