P L D 1965 (W (PLP)

Shamsuddin for Defendant No.

1. I. S. Sulleman for Defendant No.

2. Date of hearing: 14th September 1964. This is a reference under section 435, Cr. P. C. by Mr. Hamid Ali Memon, Additional Sessions Judge, Karachi, recommending to this Court that the order passed by Mrs. Suraiya Ahmad Pai, A. C. M., Karachi on 29‑8‑63 awarding maintenance to the four minor children of Suleman and Mst. Khatija be set aside and the case be remanded to the Court of the Magistrate for giving a finding as to the income of the husband Suleman and his refusal and neglect to maintain his children.

2. I have heard Mr. Abdul Hai Qureshi for the State, Mr. I. S. Suleman for the wife and Mr. Shamsuddin for the husband and I am of the opinion that this reference deserves to be rejected.

3. The parties were married about 6 years ago and out of this wed‑lock four children were born. The eldest amongst these is 5 years of age and the youngest is 14 years. According to the personal law of the parties the mother is entitled to Hizanat (custody) of all these four children. The case of the husband was that he was willing to maintain the wife and the children if the Wife came to stay with him and that such an offer had been made. The question then arises whether upon the wife remaining away from the husband at her father's house the opponent Suleman, the father of these four children, is still liable to pay maintenance to them. That they are unable to maintain themselves cannot be disputed. The liability, therefore, to maintain them is that of the father. It is true that section 488 can be successfully invoked only when there is a refusal or neglect to maintain. That aspect, however, does not present any difficulty in this case because the minors are living with the mother who is entitled to their custody and during this period the husband has not paid maintenance for the children presumably upon the ground that he insisted that the wife should come back and live with him. It seems to me to be plain that the liability of the father to maintain his minor children is absolute until it is found that the mother is not a fit person to continue in custody to which she is entitled under the personal law. That being so, the neglect becomes apparent and no further evidence is necessary to establish it. That disposes of the first ground of the reference.

4. With regard to the second ground that the means of the husband had not been determined by the learned Magistrate it is clear even from the resume given by the learned Additional Sessions Judge of the evidence and also from the order of the learned Magistrate that the husband was working at the shop of his uncle. In fact, during the proceedings an offer was made by D. W.

1. Suleman in the witness box to pay Rs.

75. It also appears from the order of the learned A. C. M. that Suleman made an offer of payment of Rs. 90 per month if Mst. Khatija went back to him. In the present case, considering that Suleman was working at the shop of his own uncle, it would obviously be difficult for the wife to establish his true income. The fact, how ever, that an offer to pay Rs. 75 was made would clearly indicate the income of Suleman. I am, therefore, of the opinion that the order of the learned A. C. M. directing payment of Rs. 18 per child was a proper order. It is clear from the order and from the circumstances of the case that there was both neglect to maintain and means to do so. I accordingly reject this reference. K.B.A. Reference rejected.