P L D 1969 Azad J & K 42 (PLP)

Z. H. Naqvi for Petitioner. M. Y. Saraf for Respondent. Date of hearing : 7th December 1968. Zeenat Bibi was married to Mohammad Hussain petitioner. They lived together as husband and wife for ten years but then in 1965 or 1966 Mohammad Hussain divorced Zeenat Bibi. They had a son Jamshaid Ali who was about seven years of age at the time of the divorce. After the divorce Mst. Zeenat Bibi went away to live at Jhelum and took away with her the son Jamshaid Ali. In 1966 she made an application under section 488, Cr. P. C. for the award of maintenance for the minor child at the rate of Rs. 60 per month. The learned Revenue Assistant Magistrate 1st Class, Mirpur, by order dated 30‑5‑67 awarded maintenance for the minor child at the rate of Rs. 25 per month. Mohammad Hussain has come up in revision against the said order. It was argued by Mr. Naqvi learned counsel for the petitioner that the minor child was more than seven years of age even at the time of the making of the order by the learned Magistrate and that under Mohammadan Law Zeenat Bibi, the mother, had lost her right to the guardianship of the minor son which right extended only up to the age of seven years and that the father after that age was the natural and legal guardian of the minor son, therefore, no order of maintenance should have been made. Mr. Saraf learned counsel for the respondent frankly conceded that the minor son was above seven years even at the time of the making of the order of maintenance. Mr. Naqvi cited Fazal Ahmad v. Mst. Kaniz Fatima (P L D 1968 Kar. 211) and Alif Din v. Shaukat Ali (P L D 1969 Pesh. 62) in support of the proposition that no order as to mainten ance should be passed when the minor son had exceeded the age of seven and the mother has become disentitled to the guardianship of such minor son. On the other hand Mr. Saraf learned counsel for the respondent cited Ghulam Husain v. Muhammad Aslam (P L D 1961 Lah. 733) which lays down that the maintenance of the child is not restricted to the period of minority and that the legal right to the custody of the child is irrelevant in proceedings under section 488, Cr. P. C. The proviso to subsection (3), relating to an offer to maintain, has reference only to the wife and not to the child and subsections (4) and (5) disentitle only the wife for maintenance if she refuses to live with her husband. An offer by the father to main tain the child or the fact that the child is not left in his custody is not a valid ground for refusing maintenance. The reason is firstly, that it cannot be said that the child and the father ought to live together in the same way as a husband and wife should, as an incident of matrimony; and secondly; the question as to whether the father or the mother or any other person is the proper guardian of the person of the child is a matter for the civil and not for the criminal Courts. The offer by the father to maintain the child if it is left in his custody will, however, be relevant in considering the question of refusal or neglect to maintain, and the Court will have to consider the bona fide of such an offer in its entirety. It was argued by Mr. Naqvi that he had proved by evidence on record that the father had been trying to get back the child and that he should not have been burdened with the maintenance of the child but it was pointed out by Mr. Saraf that it was only after the mother had come to the Court asking for maintenance for the child that the father took the plea that he offered to maintain the child if left with him and he filed an application for the guardianship of the child in the Court of the District Judge, Mirpur, after the application under section 488, Cr. P. C. had been made. This application for guardianship was dismissed by the learned District Judge of Mirpur on the ground of want of jurisdiction since both the mother and the child lived at Jhelum and were not residing within the jurisdiction of the Court. Mr. Naqvi pointed out that he has now made another applica tion in the Court of the Senior Sub‑Judge, Jhelum for the guardianship of the child in which 19‑4‑1969 is fixed as the next date of hearing. The offer of the father to maintain the child, if left with him, cannot be said to be bona fade since it was made not immediately when the mother was divorced and she took the child away but only after she returned and approached the Mirpur Courts for award of the maintenance. Besides the child has to be maintained whether he lives with the father or the mother and the father has to maintain the child till such time as be can get back the custody of the child in due course of law. If the father succeeds in getting the custody of the minor son from the Guardianship Court at Jhelum, of course the payment of maintenance shall come to a stop but till such time as the child remains with the mother, the father has to pay the maintenance. In Ghulam Hussain v. Muhammad Aslam J. H. Rizvi J who referred the case to a bigger Bench, was of the view that "A minor child has ordinarily no volition as regards his stay. In fact his stay is controlled by the mother or the father and he does not stay away from either of them by his own choice. As regards the custody of a child, the parents can have the matter decided in a Guardian Court, but it would be cruel to refuse to give maintenance to a child who was living with his mother after the termination of the period of `hizanat' of the mother. The father's responsibility to maintain the child should not be restricted on condition of his staying with the person who might be entitled to his `hizanat' according to the Muslim Law. As long as the child is with the mother she must be provided sufficient means to maintain it. If the father has the right to the custody of the child he can at any time institute proceedings for that purpose. A father may be accord ing to Muslim Law entitled to the custody of the child but the Court in a proper case may refuse to give the custody to him if it comes to the conclusion that it would not be for the welfare of the minor to be removed from the custody of the mother and handed over to the father. If the view taken in Sayed Mushaf Hussain Shah v. Hameeda Begum (P L D 1957 Lah. 220) is followed the result would be that the children would remain without any maintenance during the period the father and the mother litigate about their custody and the civil litigation may in some cases be long drawn. Therefore, the right of the child to receive maintenance cannot be denied to him because he was not living with the father after having attained the age of the termination of the `hizanat' of his mother. The willingness of the father to take the child and to maintain it has nothing to do with his liability to pay the maintenance which should be irrespective of the residence of the child. The grant of mainte nance under section 488, Cr. P. C. is not restricted to the period of minority. It may be granted in a proper case even to a child who has attained majority. The question of the residence of the child thus becomes irrelevant." Kayani, C. J. and Shabir Ahmad, J. who formed the bigger Bench held that "On the language of section 488, Cr. P. C., no consideration as to the right of custody is relevant, and "any person having sufficient means" who "neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself" becomes liable merely "upon proof of such neglect or refusal". The conditions that arise for consideration in the case of a wife do not apply in the case of a child and the father's offer of maintenance on condition of the child living with him is not relevant in proceedings under section 488 of the Code. Section 488 of the Code does not provide for an offer in the case of a child. The reason is that there is no person who can accept the offer. The child does not know what is good for him and what is not good for him. If his mother is compelled by straitened circumstances to hand over custody to the father, and there is a step mother with her own children, how can it be said justly that the mother's refusal to accept the offer in the case of a child of two years disentitles the child to maintenance. It is now well settled that if the mother is otherwise a suitable person to take charge of the child, "it is quite impossible to find an adequate substitute for her for the custody of a child of tender years", and consequently the mother is preferable to the father in such a case. If the mother has the present custody of a child, even though she is not legally entitled, it should be presumed that her custody is for the welfare of the minor, so long as the contrary is not proved. When the father makes an offer of maintenance on condition that the child lives with him, and he does so only when an application under section 488, Cr. P. C. 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." I am in full agreement with the observations made by the learned Judges in Ghulam Husain v. Muhammad Aslam. It was even observed by M. A. Cheema, J. in Fazal Ahmad v. Mst. Kaniz Fatima that "Although under the Muslim Law, the father is the natural guardian of the minors, and as such entitled to the custody of a son who attains the age of seven years, or a daughter who attains puberty, marking the termination of the mother's period of `hizanat', yet there may well be very good reasons for denying him that custody consistent with the demands of the welfare of the minor which is over‑all determin ing factor to be kept in view". I am of the view and hold that an order awarding mainte nance to the minor son would hold good even though the minor son exceeded the age of seven year, till such time as the father obtains the custody of the minor son from the Guardianship Court and the rule of Muslim Law that the mother loses her right to the hizanat of a male child when he attains the age of 7 years would not make any difference in the case. The revision petition is accordingly dismissed. S. A. H. Petition dismissed.