P L D 1966 (W (PLP)

This is a reference under section 438, Cr. P. C. by Mr. Muhammad Shafiq Khan Sessions Judge, Hazara whereby he has recommended that the order dated 10th September 1963, passed by Mr. Azizul Hasan Khan, Assistant Commissioner and Magistrate 1st Class, Abbottabad, dismissing the application of Manzoor and Mst. Farhat Jabin, respectively, minor son and daughter of Abdul Qayum respondent for maintenance under section 488, Cr. P. C., "be quashed and that he be directed to proceed with the hearing of the petition".

2. The reference raises an important question as to whether on the true interpretation of the provisions of section 488, Cr. P.C, the right of maintenance in favour of the minor children of a person can be taken away in view of any agreement entered between the father of the minor and the mother, or, for the matter of that, any other person.

3. The admitted facts culminating in this reference briefly are that Mst. Sikandar Jan was the wife of Abdul Qayum respondent. Mst. Farhat Jabin and Manzoor were born of the wedlock. On 10th May 1960, Mst. Sikandar Jan was divorced under a written divorce deed. On 1‑4‑1963, Mst. Sikandar Jan on behalf of the aforesaid minors instituted an application under section 488, Cr. P. C. against Abdul Qayum.. On 29th April 1963, on the basis of a written compromise deed, dated 27‑4‑1963, the application was dismissed as under the written compromise deed Mst. Sikandar Jan had withdrawn the application. The agreement also stipulated that Abdul Qayum would not be responsible for any future maintenance.

4. On 15‑7‑1963, another application was instituted by Mst. Sikandar Jan for maintenance of the minors under section 488, Cr. P. C. The respondent filed a written statement in which among other objections, it was contended that the application for maintenance was barred on the principle of res judicata in view of the compromise on the basis of which the previous application was rejected. Mr. Azizul Hasan Khan, Assistant Commissioner and Magistrate 1st Class, Abbottabad, by his order dated l0‑9‑63, dismissed the petition as he thought that in view of the compromise in the previous application there was "no reason to restart the proceeding anew". Mst. Sikandar Jan on behalf of the minors, preferred a revision petition in the Court of Sessions Judge, Hazara, and the learned Sessions Judge, as already indicated, has recommended the quashment of the order of the learned Magistrate. The reasons, which persuaded the learned Sessions Judge in making the recommendation are given in para. 3, which reads thus:‑

"It is statutory right of minor children of a father to be maintained by him. Any compromise whereby the minors are deprived of their legal right or is even detrimental to their rights is null and void. Mst. Sikandar Jan in fact had no such power to enter into a compromise with Abdul Qayum whereby the minors were deprived of their right. The order of the Magistrate dismissing the petition is manifestly illegal and, therefore, cannot be maintained."

5. Mian Yunas Shah Advocate in support of the reference strenuously argued that the provisions of section 488, Cr. P. C. cast a statutory obligation on a father who in spite of sufficient means "neglects or refuses to maintain his legitimate or illegitimate child unable to maintain itself" and that the minor child in predictment, referred to above, has a legal right to be maintained by the father, and that no person even the mother could deprive the minor of the legal right of maintenance. Reliance was placed on the decision in Muhammad Amin v. Mst. Mumtaz Begum (P L D 1957 Lah. 685) and the decision in Maung Tin U v. Ma Hia Kyi (A I R 1937 Rang. 246). In the first noted authority Mst. Mumtaz Begum was first married to Hafiz Bashir and bore him two children. She was divorced by him and then she married Muhammad Amin, who executed an agreement in her favour that in case she lived separately from him he would pay Rs. 27 per mensem as maintenance. On 17th April 1952, Mst. Mumtaz Begum filed an application under section 488, Cr. P. C. for the grant of a monthly allowance as maintenance. Mst. Mumtaz Begum obtained an order of maintenance at the rate of Rs. 50 per mensem. On revision petition filed by the husband the Additional Sessions Judge recommended that in view of "an express agreement between the parties which provide maintenance at the rate of Rs. 27 per mensem, the jurisdiction of the criminal Court to grant maintenance under section 488 of the Code of Criminal Procedure was ousted". Changez, J. repelling this contention at page 687, observed:‑

"An agreement executed by the husband in favour of his wife providing a maintenance allowance does not debar the wife from applying under section 488 of the Code of Criminal Procedure and the statutory right guaranteed by the law cannot be denied to her merely on that score, provided she is able to satisfy the condition laid down in the section. The Court's jurisdiction cannot be ousted by such an agreement."

6. In the second authority under an Award a lump sum of Rs. 85 was awarded as maintenance to a child. After some time a fresh application was initiated on behalf of the minor by her mother who had since been divorced by the husband, for the maintenance of the child under section 488, Cr. P. C. The application was resisted, among other grounds, on the plea that as the respondent had paid a lump sum of Rs. 85 for the maintenance of the child "he cannot be said to have refused or neglected to maintain the child and while any part of this sum remains he cannot be called upon to maintain the child". Spargo, J., at page 248 rejected the contention with the following observations:‑ Of course this lump sum is not a complete answer to future applications by the woman. If at any time she finds that she has nothing left of this sum she can apply to the Court for a fresh order for maintenance, and there will be no obstacle then to this fresh order in the fact that this lump sum had been paid on a previous occasion."

7. Mian Yunas Shah also pressed into service the provisions of section 23 of the Contract Act, and argued that the agreement was not lawful, in that it would defeat the provisions of section 488 which was a "law" within the meaning of section 23 of the Contract Act.

8. Mr. Abdul Waheed Khan learned counsel for the respondent, on the other hand, argued that the impugned order dated 10th of September 1963, was to be interpreted to record a finding that there have been no neglect or refusal by the respondent to maintain the children. The learned counsel when confronted with the question that the impugned order does not at all record any finding that there had been refusal or reglect on the part of the father to maintain the children, but it dismissed the application on the technical ground that the agreement in the previous application was a bar in the way of the mother to maintain the second application, he tried to argue that though the learned Magistrate had not in so many words held that the res pondent had not refused or neglected to maintain the children, but the learned Magistrate meant this. The learned counsel next argued that though the principle of res judicata within the meaning of section 11 of the C. P. C. as such was not applicable to the proceedings under section 488, Cr. P. C. but if there has been an adjudication on an application under section 488, Cr. P. C. the principle of finality, which is the foundation of res judicata, operates as a bar of maintaining successive application. Reliance was placed on the decision in Mst. Kanez Khalida v. Ibrahim (P L D 1958 Lah. 1014). The decision instead of advancing the case of the respondent, in my view; clinches the matter against him, in that Mahmud, J. at page 1020, after considering several cases bearing on the point, in para. 7 summed up the discussion thus:‑ "The principle which can stand in the way of a second application is that of `finality', as held in Sadr‑ud‑Din v. Mst. Musahib Khanam, which is the foundation of the rule of res judicata and operates where a question has been gone into and has been decided on merits and bars a reconsideration in a second application of a matter finally determined, as to do so would mean rehearing a matter already decided, and may amount to exercising appellate powers, none exist by a Court of co‑ordinate jurisdiction though the evidence has to be recorded denove."

9. After giving the arguments addressed at the bar my careful consideration, I have formed the opinion that a minor cannot contract himself out of the statutory right of maintenance under section 488, Cr. P. C. either himself or through any other person including his mother, for the short and sensible reason that the minor is incompetent to enter into contract. (See .4 sections 2, 10 and 11 of the Contract Act). The contracts entered into by the minors or any one else, barring the contracts made by their legally constituted guardians and that also under certain specified circumstances, are wholly void and not merely voidable. This point was settled in the leading case of Mohori Bibee v. Dhurmodas (30 Cal. 539 (P C)). There is another aspect of the case and it is that if a minor cannot enter into a valid contract himself he cannot do through an agent. Reference may be made to the decision in Parkash Chand v. Messrs Straus & Co. Ltd. (109 I C 1928) in which it was held that it is the capacity of the Principal to enter into a contract which determines the binding nature or otherwise of the contract and that a minor is incapable of entering into valid contract either personally or through an agent.

10. It follows from the above discussion that the right of a minor to receive maintenance under section 488, Cr. P. C.' is inalienable. For all the foregoing reasons, I accept the recommendation of the Sessions Judge, quash the order of the learned Magistrate, and remit the case to him to decide it on merits after recording the evidence. K. B. A. Reference accepted.