P L D 1968 Karachi 211 (PLP)

(1) That the learned Additional District Judge had erred in law in ignoring the important fact that the determining factor in regard to the custody of minors was their welfare which from the evidence on the record was established to lie with the father who was their natural guardian and had definitely better means of maintenance. Reliance was placed in this regard on Muhammad Bashir v. Mst. Ghulam Fatima P L D 1953 Lab. 73, Mst. Niaz Bi v. Fazal Ilahi P L D 1953 Lab. 442 and Ali Akbar v. Mst. Kaniz Maryam P L D 1956 Lah. 484. (2) It was next contended that even if neglect or refusal to maintain the children was established against the father, it was hardly a ground for refusing their custody on determination of the mother's period of Hizanat. Reliance was placed on Mst. Munawar Jan v. Master Muhammad Afsar Khan P L D 1962 Lah. 142.

7. On the contrary, learned counsel appearing on behalf of Mst. Kaneez Fatima raised the following contentions:‑-- (1) That the impugned order of reference made by the learned Additional Sessions Judge was not based on a proper appraisal of the evidence. (2) That the authorities relied on by the learned Additional Sessions Judge, namely, Mst. Hamida Begum v. Syed Mashaf Hussain Shah P L D 1958 S C (Pak.) 234 and Lal Baashah v. Mst. Saeeda Begum P L D 1960 Pesh. 88, were quite distinguish able and had no bearing on the instant case: (3) That the amount of maintenance fired by the learned Magistrate was just and proper in the circumstances of the case and mote so when the father had even ejected the mother and the children from his house in execution of a decree obtained from the Civil Court. It was stated that in fact, it was the father who had initiated litigation by filing a suit for ejectment against the mother and the children on 11th August 1964 i.e. a month prior to her application under section 488, Cr. P. Code. It was argued that maintenance could be grated to the minors irrespective of their ages. Reliance was placed in this regard on Mst. Sughra Begum and others v. Mian Muhammad Din P L D 1957 Lah. 441, Ghulum Hussain v. Muhammad Aslam and another P L D 1961 Lah. 733, Atia Waris v. Sultan Ahmad Khan P L D 1959 Lah. 205; Khushi Muhammad v. Mst. Muhammad‑un‑Nisa P L D 1961 Lah. 768, Khan Muhammad v. Mst. Gohar Bano P L D 1965 Lah. 46, Mst. Wazir Bagum v. Feroze‑ud‑Din Vehra P L D 1965 Lah. 260, Akhtar Ahmad v. Mst. Hazoor Begum P L D 1967 par. 65 and Mst. Sultana Begum v. Muhammad Shafi P L D 1965 Kar. 416. (4) Lastly, it was contended that the learned Additional Sessions Judge had completely ignored the judgment of the Guardian Judge which was a judgment in rein and should have received' proper consideration. Reliance was placed on Mst. Hamida Begum v. Syed Mashaf Husain Shah P L D 1958 S C (Pak.) 284.

8. I now proceed to consider the respective contentions of the parties seriatim. As already indicated, the order of reference by the learned Additional Sessions Judge dated 30th of November 1966, recommending that the order dated the 19th January 1965 passed by Mrs. Surraya Ahmad, Additional City Magistrate, allowing application of Mst. Kaneez Fatima under section

488. Cr. P. Code, should be set aside, clearly indicates a total disagreement with the trial Court both on factual as well as legal plans. Mr. Ansari, the learned Additional Sessions Judge appears to have gone all out to accept the application of Fazal Abroad under section 435/438, Cr. P. Code, giving rise to Criminal Reference No. 46 of 1966. In support of his first contention that the father being the natural guardian was entitled to the custody of the minor, at least after the termination of the mother's period of Hizanat, and particularly having demanded their custody he could not be found guilty of neglect or refusal to maintain, the learned counsel placed reliance on the Supreme Court authority in Mst. Hamida Begum v. Syed Afashaf Hussain Shah. In fact, it is only a reiteration of the finding given by Mr. Ansari who had himself relied on the same authority. Since, however, section 488 of the Criminal Procedure Code contains a general provision equally applicable to all citizens, irrespective of their religious denominations, their Lordships examined the implications of this provision vis‑a‑vis the Muslim Law. The view taken by their Lordships was that the provisions of section 488, Cr. P. Code were not intended to shut out entirely all reference to the personal law of the parties, except in matters in respect of which a clear departure had been made from that law in the section itself. It was held that it was difficult to affirm that the question of right of custody of the child was not at all germane to section 488, Cr. P. Code, as it may very well have a bearing on the question whether the father had in fact neglected or refused to maintain the child or not. . Reliance was placed by the learned Additional Sessions Judge in particular on the following observation made by their Lordships:‑

"If the rules of that law give to a Muhammadan father a prima facie right of guardianship of his minor child, we do not see any insuperable objection to that fact receiving due consideration in. the context of the alleged refusal or neglect of the f4ther to maintain the child in the absence of any express provision to the contrary in section 488 of the Code or at least a necessary intendment to that effect, arising as an inescapable conclusion from the language of that section. The obligation imposed by that section on the father intrinsically contains "an implication that the custody of the child should be with him‑ unless the general Law varies that position and enables child to live with someone else. In the latter case the father would be under a duty to pay the maintenance allowance for the child to the individual entitled to its custody but not in the absence of an order of a competent Court or a rule of the general law to that effect. To insist that the father in such cases must be forced to go to the proper Civil Court for redress, may be tantamount to putting a premium on the act of a party acting wrongfully. It may be, in our opinion, sufficient for the father to establish that he had all along been anxious and had made bona fide demands for the custody of his minor child whose legal guardianship under the personal law vested in him, for, a plea to be advanced successfully on his behalf, in answer to a petition under section 488, Criminal Procedure Code, that in the absence of compliance with his wishes, he was not guilty of negligence or refusal to maintain the child by declining to make an allowance for its upkeep. The decisions in Man Singh v. Mst. Dharmon 18 P R Cr. 1894, Sardar Muhammad v. Nur Muhammad 22 P R Cr. 1917 and Jagan Nath v. Koshallia Devi A I R 1927 Lah. 430 proceed on a similar principle and support may be found for this view even from some of the cases cited by learned counsel for the appellant before us." One thing which appears to have escaped the notice of the learned Additional Sessions Judge is the emphasis laid by their Lordships on the "bona fide demands" on the part of the father for the custody of his minor child. It appears that Mr. Ansari, the learned Additional Sessions Judge simply assumed that father' had made bona fide demands which conclusion is not inferable from the evidence on the record. 8‑A. Before proceeding to discuss the evidence, it appears necessary to clear another misunderstanding in this regard. 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 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 the over‑all determining factor to be kept in view'. This proposition is based on a chain of authorities, of which the following may be cited:‑-- (i) Orang v. Mahboob Elahi A I R 1926 Lah. 170. (ii) Muhammad Bashir v. Mst. Ghulam Fatima P L D 1953 Lah.. 73. (iii) Zainab Bibi v. Feroze‑ud‑Din P L D 1.954 Lah. 704. (vi) Ali Akbar v. Mst. Kaniz Maryam P L D 1956 Lah. 484. (v) Mst. Rashida Begum v. Shahab Din and others P L D 1960 Lah. 1142. The ratio decidendi of the aforesaid authorities is that under Muslim Law, there is a presumption that the welfare of the minor lies with the parent entitled to his custody, but that it is a rebuttable presumption and the Courts might refuse the custody to the parent so entitled consistent with the demand of the welfare of the minor. Ghulam Hussain v. Muhammad Aslam and others (P L D 1961 Lah. 733) and Khushi Muhammad v. Muhammad‑un‑Nisa (P L D 1961 Lah. 768) were also cited in support of the proposition. Earlier, however, there appeared to be some conflict of views on the point as to whether the father, if willing to take the minor in his custody and maintain him could still be found guilty of neglect of the minor and refusal to maintain him in terms of section 488, Cr. P. Code. In Mashaf Hussain v. Hamida Begum (P L D 1957 Lah. 220) Kaikaus, J. took the view that father being the natural guardian willing to maintain the minor on conditions of his residence with him, could not be found negligent or refusing to maintain. In another case, Mst. Sughra Begum v. Muhammad Din (P L D 1957 Lah. 441) Shabbir Ahmad, J. took the view that under section 488 of the Code, a child unable to maintain himself irrespective of his age was entitled to maintenance even though he refused to live with the father after the termination of the mother's period of Hizanat. In order to resolve the conflict of views the matter was referred to the Full Bench in Ghulam Hussain v. Muhammad Aslam. After reviewing the relevant case‑law, it was held by Kayani, C. J. that in fact no such conflict existed between the two authorities, each of which dealt with different situations. The conclusions arrived at by their Lordships of the Full Bench may be summarised as follows: (i) That the father even if entitled may be refused the custody of the minor in a proper case when the welfare of the minor demands this. (ii) That the willingness of the father to take the child and maintain it does not absolve him of his liability to pay the maintenance for which purpose the age of the child is irrelevant. (iii) That when the father makes an offer of the maintenance on conditions of the child's residence with him and does so only when an application under section 488 of the Code is made against him, it may be presumed that he himself held the mother's custody as being for the welfare of the minor. The matter did not rest here. The case, Mashaf Hussain v. Mst. Hamida Begum decided in the first instance by Kaikaus, J. was ultimately taken by Mst. Hamida Begum to the Supreme Court, who was given Special Leave to Appeal. In this case, Mst. Hamida Begum v. Mashaj Hussain their Lordships of the Supreme Court observed as follows:‑-- "In our view, the rule has been too widely stated in some of these authorities, if it is intended to lay down that the father's right to custody must receive no consideration whatever, in proceedings under section 488, Criminal Procedure Code. Such a broad proposition might lead to some startling results in extreme cases. To illustrate, a case may be envisaged where divorced wife takes away her minor daughter with herself, in the teeth of opposition by the husband, with the object of subjecting the child to prostitution and then demands maintenance for the child. Can it be successfully argued that in such circumstances there would be an absolute right of the wife to claim maintenance for the child from the father, although the latter pay be extremely mxious and may be making genuine efforts to get back the custody of the child? It would be difficult to affirm in these circumstances that the question of the right to custody of the child is not at all germane to section 488, Criminal Procedure Code. It may very well have a bearing on the question whether the father had in fact neglected or refused to maintain the child or not." If I have correctly understood the law as enunciated by their Lordships, it seems that where the father has made a bona fide and sincere effort to get the custody of the minor to which he is entitled after the termination of the mother's period of Hizanat, he may not be held guilty of negligence or refusal to maintain the child, and the plea of his bona fide demands could be successfully taken by him in answer to a petition under section 488 of the Code. While coming to this conclusion their Lordships also placed reliance on Man Singh v. Mst. Dharmon (18 P R Cr. 1894), Sardar Muhammad v. Nur Muhammad (22 P R Cr. 1917) and lagan, Nath v. Koshellia Devi (A I R 1927 Lah. 430).

9. The first point, therefore, which falls for determination is whether Fazal Ahmad had made sincere efforts showing his anxiety and bon fide desire to get the custody of the minors. The learned Additional Sessions Judge has undoubtedly given a finding in his favour, which, I am afraid, cannot be sustained. It cannot be denied that no stage prior to the initiation of proceedings against him by just. Kaniz Fatima under section 488 of the Cr. P. C. or even during their pendency did Fazal Ahmad evince the least desire to get the custody of the minors. It was not until she had succeeded before the Additional City Magistrate on 19th, January 1965 that he filed his first application under section 25 of. the Guardians and Wards Act on 9th February 1965, which was dismissed by Mr. Mehdi Ali Siddiqui, Additional District Judge on 4th February 1966. In fact, even before an application under section 488, Cr. P. Code was moved by Mst. Kaniz Fatima against Fazal Ahmad, he had brought a suit for her ejectment from a house in Liaquatpur, where she was living with the minors. In this he ultimately appears to have succeeded, as stated before me by the learned counsel for Mst. Kaniz Fatima, without being contradicted by the opposite counsel. The ages of the minors as mentioned by Mst. Kaniz Fatima in her application dated the 10th September 1964, ranged between five to sixteen years. Only the eldest son, Zahoor Ahmad, was twenty years of age, who could look after himself. The remaining four children were, therefore, entirely dependent on their mother who somehow managed to maintain and educate them by doing odd jobs. There is, however, a reference in the order of the learned Additional City Magistrate dated the 19th January 1965, that Mst. Kaniz Fatima admitted in her statement that Fazal Ahmad started paving her Rs. 80 per mensem under pressure of some of his own people, which in all probability had been stopped inasmuch as, no further reference has been made to this in the order by which Fazal Ahmad was directed to pay a monthly maintenance of Rs. 50, to each of the three children. If, however, he was already paying Rs. 80 then, he would be only called upon to pay the balance of Rs. 70, out of a total of Rs. 150 per mensem, and even ' so, the maintenance already paid by him being held to be inadequate, the neglect was still very much there. But, as stated earlier, the absence of any reference to this amount in the order would indicate that by the time Mst. Kaniz Fatima was constrained to move the application, this bad already been stopped. In the circumstances, therefore, I have no reason to disagree with the finding given by Mr. Mehdi Ali Siddiqui, .the learned Additional District Judge that Fazal Ahmad never bothered about the welfare of the children until forced by circumstances and that his sudden professions of paternal affection for the children and the demand of their custody after the Criminal Court had already passed an order against him was not a true guide to these feelings and was merely a device to circumvent the order of the Court and to avoid payment of the maintenance, allowance. As already stated, it was held in the Full Bench authority in Ghulam Hussain v. Muhammad Aslam by Kayani, C. J. that when the father makes an offer of maintenance on conditions that the child lives with him after an application has been moved against him under section 488 of the Code, it may be presumed that he himself considered the mother's custody as being for the welfare of the child. The same view was adopted by Shakirullah, J. in Khan Muhammad v. Mat. Gohar Bano (P L D 1965 Lah. 46). In the circumstances of the case, therefore, I am satisfied that Fazal Ahmad bad never made bona fide demands for the custody of the minors either before the application moved against him under section 488, Cr. P. Code or even thereafter. I am, therefore, clear in my mind that the Supreme Court authority relied upon by the learned Additional Sessions Judge could not be pressed into service in favour of Fazal Ahmad.

10. Coming now to the second contention raised by the learned counsel for Fazal Ahmad, that with the termination of the mother's period of Hizanat of the minors, the father being entitled to their custody and willing to take them could not be held guilty of neglect, or refusal to maintain; I have already held on the basis of authorities that the paramount and determining consideration in all such cases is the welfare of the minor and not the rights of the parents, in whose favour an initial but rebuttable presumption can be raised. In so far as the father's responsibility for the maintenance of the children is concerned, the expression used in section 488, Cr. P. Code is "child unable to maintain itself". The ages ,which would otherwise be relevant for the demand .of custody would not be strictly relevant iq, so.r far as the father's responsibility for the , maintenance is concerned. The legal requirement is that the child must be unable to maintain himself. This inability may be due to a variety of reasons including minority. For instance, it could also be due to protracted illness or engagement in studies. This view finds support from Mst. Sughra Begurn v. Mian Muhammad Din; and Mst. Wazir Begdm v. Feroze‑ud‑Din (P L D 1965 Lah. 260) , as also from the Full Bench authority reported as Ghulam Hussain v. Muhammad Aslam and others. In short, the ages of the children would not be relevant in so far as the responsibility of the father to maintain them is concerned. What however, is more interesting is the finding given by Mr. Ansari, the learned Additional Sessions Judge regarding the ages of the children. According to him on 30th November 1966, i.e. the date of his order, they would be roughly .21, 15 and 12 respectively. This calculation is purported to have been based on the statement of Mst. Kaniz Fatima made in October 1964. On the other hand, the ages given by Fazal Ahmad in his application under section 25 of the Guardians and Wards Act, dated the 4th of May 1966, are 16, 14 and 10 years respectively. Strangely enough the learned Sessions Judge while making the calculations has gone even a step further than Fazal Ahmad himself. Incidentally the three children happened to be present in Court at the time of hearing along with their litigating parents, who were arraigned against each other. The girl, Mst. Anis Fatima, hardly appeared to be about twelve years, whereas the boy Zaheer looked about seven years. But this, as stated earlier, is all irrelevant and the father cannot be absolved of his responsibility of maintenance. In Mst. Wazir Bagum v. Feroze ud Din Vehra, the father was held to be responsible for the maintenance of a twenty three years old daughter who was a fourth‑year student receiving education. In this, Jamil Hussain Rizvi, J. with whom I am in respectful agreement, dissented from the view taken by Addison, J. in Shanno Devi v. Daya Ram (A I R 1933 Lah. 1026).

11. The last contention that the maintenance at the rate of Rs. 50' per mensem, per child, was excessive besides being inequitable is likewise devoid of force. In order to thrash out this question we shall have to advert once again to the evidence led by the parties regarding the monthly income of Fazal Ahmad. According to the finding given by the learned Additional City Magistrate, Fazal Ahmad was a proprietor of `Jameeit Dawakhana' which was built on a plot in Meharabad Co‑operative Housing Society, standing in the name of their eldest son Jamil Ahmad. The learned Magistrate appears to have taken intelligent interest in the case and in view of the conflicting statements of the parties, one Shahabuddin, Secretary of the aforementioned,' Housing Society was examined as a Court witness. Th4Aestimony of this witness supported by documentary evidence completely belied Hakim Abdul Ghafar, who was the sister's son of Fazal Ahmad and was produced by him as a witness, Mst. Kaniz Fatima on the other hand, was supported by Hakim Zika‑ur‑Rehman, a disinterested witness and a Member of the Basic Democracy, who placed Fazal Ahmad's monthly income at Rs. 1,

000. In the absence of any convincing proof as to the precise monthly income of Fazal Ahmad, the learned Magistrate taking into consideration all the relevant factors placed it between Rs. 300 to Rs. 500, and ordered a total monthly allowance of Rs. 150 in equal shares for all the three children. This finding was also set aside by the learned Additional Sessions Judge, who placing full reliance on the testimony of Abdul Ghaffar, a nephew (sister's son) of Fazal Ahmad, placed the latter's "come at Rs. 175 per mensem. For reasons given earlier, I am inclined to agree' with the findings given by the Additional' City Magistrate in her sound and well‑reasoned order. 'I agree with her that `Jameeli Dawakhana' belonged to Fazal Ahmad and was run by him. I also agree with her that Fazal Abroad was the owner of three shops which also brought some rent to him. Besides, Fazal Ahmad has also now got vacated the house from Mst. Kaniz Fatima, which according to the position taken by him would fetch him a monthly rent of Rs. 60 to Rs.

70. This is the same house in which she found shelter along with her children. In view of all these circumstances, I do not find that the total maintenance of Rs. 150 per mensem would be excessive in any manner. Mst. Kaniz Fatima has managed not only to maintain, but even educate her children. Maqbul Ahmad is a student of the Third Year Class and as such is obviously, unable to maintain himself. With a growing consciousness of democratic values, educational expenses consistent with the status of the family should in all fairness be deemed, to be a relevant consideration in the assessment of maintenance allowance. Education which was once considered to be a luxury or a comfort is now undoubtedly a necessity and should be accepted by the Courts as such, of course, keeping in view the status of the family.

12. There is hardly any other point which might need consideration. The order of reference passed by the learned Additional Sessions Judge is based on erroneous assumptions and misconception of the correct legal position. Likewise the findings given by him on questions of fact are palpably incorrect and cannot be sustained.

13. For the foregoing reasons both the Criminal Reference as well as the Civil Appeal fail and are hereby dismissed. Fazal Ahmad will also bear the costs of the Civil Appeal. A. H. Order accordingly.