P L D 1961 (W (PLP)

If any person so ordered (fails without sufficient cause) to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment, for a term which may extend to one month of until payment if sooner made: Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section not withstanding such offer if he is satisfied that there is just ground for so doing: (If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.) (Provided, further, that no warrant shall be issued for the recovery of any amount due under this section unless applica tion be made to the Curt to levy such amount within a period of one year from the date on which it became due.) (4) No wife shall be entitled to receive any allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magis trate shall cancel the order. (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons‑cases Provided that if the Magistrate is`satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof. (7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just. (8) (Proceedings under this section may be taken against any person). In any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child." Proviso 1 to subsection (3) of section 488 allows a husband to take up the plea that he would maintain his wife on condition of her living with him and if she refuses to live with him the Magistrate would be within his right to consider any grounds of refusal stated by her and then pass an order under this section notwithstanding any such offer if he is satisfied that there were just grounds for her refusal to live with her husband. The Legislature did not in this proviso use the word "child" along with the word "wife." Para. 4 of the section further pro vides that a wife is not entitled to receive the allowance from her husband in case she refuse to live with her husband without any sufficient reason or if they were living separately by mutual consent. Here again it is significant to note that this sub‑para. does not deal with a .child and his refusal to live with the father. Under sub‑para. (5), the Magistrate has been authorized to cancel an order granting maintenance in case the wife refuses to live with her husband without sufficient reason of in case they were living separately by mutual consent. Here again these considerations do not come into play while considering the order of maintenance granted to a child. Moreover, 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 regard 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 why might be entitled to his hizanat according to Muslim Law. As long as the child is with the mother she must be provided with 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 according to the Muslim Law entitled to the custody of the child but the Court in a proper case refuse to give the custody to him in case it comes to the conclusion that it would not be in 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 Syed Mushaf Hussain Shah v. Mst. Hamida Begum 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 this civil litigation may in some cases be long dawn. I am, therefore, of the view that the right of a 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 maintenance under section 488, Criminal Procedure Code 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 relevant. The views expressed by the Bombay, Rangoon and Madras High Courts are to the same effect. Ebrahim Mahmed Mukri v. Khurshedbai Ebrahim Mukri (A I R 1941 Born. 267) ; Dinsab Kasimsab v. Mahamad Hussain Dinsab and another (A I R 1945 Born. 390) ; Maung San Pe v. Ma Lai Mai (A I R 1932 Rang. 183) ; In re Parathy Valappil Moideen (14 Cr. L J 597) ; and Kuppala Krishtapa v. Premaleelamani (A I R 1942 Mad. 705) ; are the authorities. As regards the Lahore High Court there has all along been divergent views on this point, Balla and another v. Mst. Atti (A I R 1914 Lah. 417) ; Sardar Muhammad v. Sur Muhammad (A I R 1917 Lah. 213) Sultan v. Mahtab Bibi (A I R 1926 Lah. 536) and Syed Mushaf HxJSain Shah v. Me. Hamida Begum (P L D 1957 Lah. 220) are authorities that in case the father offers to keep the child with hill no order granting maintenance should be passed against him while Mst. Akhtari Begum v. Abdul Rashid (A I R 1937 Lah. 236) ' and Mst. Sughra Begum and others v. Mian Muhammad Din (P L D 1957 Lah. 441) ; take a contrary view.

4. I am clearly of the view that the law as laid down in Mst. Sughra Begum and others v. Mian Muhammad Din, as also in tho Bombay, Rangoon and Madras authorities referred to above is the correct exposition of law. However, in view of the fact that there is another .authority of .this .Court Syed ,Mushaf Husain Shah v. Mst. Hamida Begum, it may be proper that this case is heard by a larger Bench. ).:et the case be placed before my Lord the Chief Justice for orders. Ch. Ghulam Mohy‑ud‑Din for Petitioner. Din Muhammad Sayan for Respondent No.

1. Maulvi Mushtaq Hussain, Additional Advocate General for Respondent No.

2. Date of hearing : 19th June 1961. ORDER OF THE DIVISION BENCH M. R. KAYANI, C. J.--‑Mst. Sharifan, complaining that her husband, Ghulam Hussain, had turned her out of his house, applied under section 488, Code of Criminal Procedure, for the maintenance of her two male children, aged eight and two years respectively, and was granted maintenance notwithstanding the husband's offer to take the custody of the children. It should be stated at once that the parties being Shia, according to Muslim law the husband becomes entitled to the custody of male children immediately lifter they attain the age of two years. Ghulam Hussain went in revision to the Sessions Judge of Sialkot, who reported the case to the High Court in view of the "conflict" between two recent cases, Sayed Mushaf Husain Shah v. Hamida Begum and Mst. Sughra Begum v. Mian Muhammad Din. It came up for decision before a learned Single Judge, who, while agreeing with the view expressed in the latter case, referred it to a larger Bench by reason of the same "conflict." Both these are cases decided by Single Judge, the former by Kaikaus, J., the latter by one of us (Shabir Ahmad, J).

3. We should make it clear that there is no conflict between Mushaf Hussain Shah's case and Mst. Sughra Begum's case, and that each covers a situation different from that of the other. In, the former, the minor for whose maintenance the mother had applied was a boy of eleven year's, and the father had offered to take him into his own custody. This wars a case similar to Hussain the one before as. Kailkaus, J. held, on a consideration of the authorities, that "the father being the natural guardian of his Aslam children; there can be no neglect or refusal to maintain on the part of the father if he is willing to maintain the child on condition that he lives with him, but that this was "subject to the qualification that in a case where the natural guardianship of the father is limited by the right of custody of the mother, it is not open to the father to insist" on this condition. "In such a, case there will be neglect or refusal to maintain if the father refuses to pay for the maintenance of the child".

4. In the second case Sughra Begum v. Muhammad Din, the application was by children, some of whom had attained majority, and the question being whether the word "child" in section 488, Criminal Procedure Code, covered them, it was held that "a child means a son or daughter irrespective of age," but "unable to support itself" or, in the language of section 488, "unable to maintain itself". The question whether the' father's or mother's right to custody would make any difference was not before the Court.

5. But we are clearly of the opinion that, on the language of the section 488, no consideration as to the right of custody is rele vant, and that "any person having sufficient means" who "neglects e or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself" become liable merely "upon proof of such neglect or refusal". In the case of a wife, however, there is a further provision in subsection (3) that even if she refuses to accept the husband's offer to maintain her "on condition of her living with him," the Magistrate may pass an order of maintenance if "there is just ground for so doing. Sub‑section (4) repeats the same provision in a different form, stating three different situations in which the wife will not be entitled to an allowance "under this section" :--(1) when she is living in adultery, (2) when "without sufficient reason, she refuses to live with her husband" and (3) when they are living separately by mutual consent.

6. The learned Single Judge has rightly pointed out that since‑ there is no such provision in the case of a child, the father's offer of maintenance on condition of.the child living with him is not relevant. In some old cases, particularly in Man Singh C v. Mst. Dharmo (18 P R 64), this omission led to the adoption of a contrary argument, viz. that "the case of a wife refusing to reside with her husband is specifically provided for : the case of a child is not". In other words, while a wife may refuse to live with her husband under certain circumstances, a child cannot so refuse. ' With great respect, section 488 does not become so eloquent by an omission. It simply does not provide for an offer in the case of a child. To whom should the offer be made ? 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 stepmother 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 disentities the child to maintenance ? Why should we assume that section 488, contemplated injustice ?

7. The argument in Man Singh v. Mst. Dhams is based on subsection (3) of section 488, which provides for an order to be made notwithstanding the wife's refusal to accept the husband's offer. That argument has not considered subsection (4), which disentitles the wife to an allowance if she refuses to live with her husband. It does not disentitle the child. The omission in respect of the child should, therefore, be interpreted in his favour, not against him.

8. Now we attend to the argument based on the right to legal custody. Even Kaikaus, J. agreed that considerations of a right to maintenance under Muslim Law were irrelevant. "As pointed out by Mahmood, J. In the matter of the petition of Din Muhammad (I L R 5 All. 226), this section creates a statutory right to maintenance irrespective of nationality or creed." He referred to the provision in section 488 for an illegitimate child, though under Muslim Law such child has no right to maintenance. He referred to the wife's right to refuse the offer for a "sufficient cause", "but this sufficient cause" he observed, "has not the same import as it would have under Muslim Law." In short, Muslim Law was not applicable to section 488.

9. When, however, he comes to the question of custody, the fact that the father is the natural guardian of his children influences his decision. "It may perhaps save some 'confusion of thought", he said, "if we regard. the father as appointed guardian of person by the Court while determining questions of custody and maintenance," and referred to section 19, Guardians and Wards Act, which provides that no application for the appointment of the guardian of a minor's person would lie if the father is alive and is not unfit to be a guardian. We might as well refer to section 25 of the same Act, which provides for the restoration of a child to the custody of "a guardian of his person", "if it is of opinion that it will be for the welfare of the ward" to return to such custody. It is now well settled that if the mother is otherwise a suitable persons 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. Saraswatibal v. Sharipad (I L R 1941 Bom. 455) etc..

10. Even Kaikaus, J. realized that it may cause a great hardship in cases where the mother is prima facie entitled to legal custody according to personal law, to require her to approach the Guardian Court in the first instance "while the need for maintenance may be urgent." We respectfully build our argument on this urgency of need. If the mother has the present custody of a child, even though she is not legally F 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 males an offer of maintenance on condition that the child lives with him, and he does so only when an application under section 488 is made against him, it may be presumed that, until then, he him, self regarded the mother's custody as being for the welfare of the child. The learned Single Judge has rightly pointed out that the child remains unprovided for during the period when his father and mother litigate about his custody, without any fault, without any choice, and in this view he is sup ported by Maung San Pe. v. Ma Lai Mai (A I R 1932 Rang. 183), a very sensible ruling, if we may say so with great respect; Rahimun Nisa v. Muhammad Ismail (A I R 1955 Hyd. 14), which contains a useful collection of Indian rulings on the subject; and Kuppala Krishtappa v. Premale lamani (A I R 1942 Mad. 705). ,

11. We, therefore, do not accept the reference made by the learned Sessions Judge, and uphold the decision of the Magistrate. K.B.A. Reference rejected.