P L D 1950 (W (PLP)

According to A I R 1943 Bom. 48, there is no qualification of age to claim maintenance under section 488 Criminal P. C.; the only qualification being that the child must be unable to maintain itself. In that case maintenance was allowed to a purdah‑nashin Muslim daughter aged 21 years. As against these authorities, A I R 1941 Lah. 92, is to the effect that the phrase 'unable to maintain itself' has reference to absence of sufficient physical and mental development in the child rendering it unable to earn its living by its own efforts. On this criterion no maintenance could be validly claimed by Mst. Sughra Begum and Mst. Munawar Begum, who are more than 20 years old, have finished their education and can take to any suitable profession to earn their living. The remaining six petitioners are yet receiving their education and should not be forced to discontinue their studies to get some employment for their daily bread. One of their brothers on completing his education is employed as a Sub‑Divisional Officer. Class II Service. The father rose to the position of a Superintendent in the highest Revenue Office of the Province. Under such circumstances, the petitioners are entitled to receive high education, as held in A I R 1941 Sind

214. Main tenance should be allowed to enable a thrifty mother to save sufficient for a simple and necessary education of her children, according to the traditions of the family. The father could not save himself from his liability to maintain his children by asserting the obviously impossible matter that the petitioners should come to live with him. He himself is living in a part of the house occupied by a brother of his junior wife. His version is that he had been expelled from his house un‑ceremoniously by the petitioners and their mother, Placed as the parties are, the father could hardly expect his sons and daughters to desert their mother and go over to him. This view is supported by A I R 1933 Lah.

969. It is urged on behalf of the father that the petitioners are dis‑obedient towards him and on that ground have absolved him from his liability to maintain them. This contention is not supported by any authority. Obedience to the father is not a necessary condition for his child to claim maintenance from him. It is urged next that the father never neglected to main tain the petitioners. His failure to provide any maintenance to them is nothing short of neglect or refusal on his part to maintain them. His insistence on their residence with him for maintenance will also amount to refusal to maintain them. The last contention on behalf of the father is that he has to pay his debts in addition to the money required for his living and for the maintenance of his junior wife. He has since retired on monthly pension of Rs. 341‑8‑

0. He has no issue from the junior wife. His written statement in the case would indicate that he had been contributing towards Provident Fund and had also taken some insurance policies. Under the new rules of pension, he is also entitled to a lump sum in addition to the monthly pension. No authority was cited in support of the contention than an application under section 488, Criminal P. C. dismissed it default could not be restored. It appears that the learned Magistrate did not act legally it dis‑allowing the maintenance to the remaining four petitioners except Mst. Sughra and Munawar Begum. He held that monthly expenses for a school going boy are about Rs. 60 p. m. and yet he allowed each Rs.

50. He was perhaps under the impression that he could not allow maintenance at a rate higher than Rs. 100 mentioned in the section itself. But this apprehension was not well founded. The words 'in the whole' do not mean that the maximum fixed in the section is for all the dependents of a person put together. The maximum of Rs. 100 is allowable in respect of each person entitled to main tenance. It is meant to prove that the Court can order a maximum of Rs. 100 only for all items of maintenance concern ing one person. With these remarks, the petition for revision submitted by the father (No. 131 of 1956) is dismissed but the petition of Mst. Khurshid Begum, Jamila Rehana, Shakila Farzana and Muhammad Saleem are submitted to the High Court for allowing them each proper maintenance in view of their father's monthly income and for enhancement of the mainte nance allowed to Muhammad Javed and Muhammad Parvez from Rs. 50 to Rs. 60 p.m. The application is dismissed so far as Mst. Sughra and Munawar Begum are concerned. Raja Said Akhar for Petitioner. Malik Bashir Ahmad for Respondent. Dates of hearing : 8th and 10th April 1957. Mian Muhammad Din; at present a retired Superintendent of the office of the Financial Commissioners, Punjab, married a second wife some time ago after divorcing his first one out of whom he had four sons and five daughters. One of the sons is employed as a Sub‑Divisional Officer in the Public Works Department, but none of the other children is earning any livelihood, and in fact two of the sons are minors. The daughters and sons of Mian Muhammad Din, except the son who is in employment, put in an application under section 488 of the Code of Criminal Procedure to be granted Rs. 510 as maintenance. At the time when the application was made Mian Muhammad Din was in service and drawing a salary of Rs. 750 a month, but he has since retired from service and is getting Rs. 341‑8‑0 as pension per month. Rai Khuda Bakhsh Bhatti granted a sum of Rs. 100 as maintenance to two minor sons of Mian Muhammad Din, Muhammad Jawed and Muhammad Parvez, but rejected the application of the other children. An application under section 435 of the Code of Criminal Procedure was presented in the Court of Sessions Judge, Lahore, with a view to having it recommended to this Court that the maintenance granted to the two minor children be increased and the other children who had been refused maintenance should be granted maintenance. The father also put in a petition for revision in the Court of Sessions Judge, Lahore, with a view to having it recommended to this Court that the order of the Magistrate granting maintenance to his two minor sons be vacated. Mr. Fazal‑i‑Ilahi, Additional Sessions Judge, Lahore, by his order dated the 12th of December 1956, rejected the application of Mian Muhammad Din, but has recommended that of the children. The recom mendation is that maintenance allowed to Muhammad Javed, and Muhammad Parvez, the two minor sons of Mian Muhammad Din, be increased from Rs. 50 each to Rs. 60 each and that Mst. Khurshid Begum, Mst. Jamila Rehana, Mst. Shakila Farzana and Muhammad Saleem be granted maintenance, adding that the other two daughters of Mian Muhammad Din, namely, Mst. Sughra and Mst. Munawar Begum, are not entitled to maintenance, because they had completed their education and being majors are capable of earning their own livelihood. The first objection raised by the learned counsel for the respondent to the recommendation made by the learned Additional Sessions judge was that under the law no maintenance could be allowed to those children who had attained majority. He contended that the word "child" should be taken to mean a boy or a girl who is under the age of 18 years. In my opinion, the word "child" occurring in section 488 of the Code of Criminal Procedure does not mean a minor and as the learned counsel for the respondent could cite no authority in support of his contention, I would hold that a child means a son or daughter irrespective of age. But whether or not the child should be granted maintenance would depend on the other consideration envisaged in section 488 of the Code of Criminal Procedure, namely, that the child should be unable to support itself and the mere fact that the age of the child happens to be 18 years or more cannot disentitle him to maintenance: If, for example, the son of a well‑to‑do father cannot earn his living because of some ailment, I do not see why he cannot claim maintenance under section 488 of the Code of Criminal Procedure though he may be over 18 years of age. The second objection of the learned counsel for the respondent to the recommendation of the learned Additional Sessions judge was that the maximum amount that could be allowed as maintenance under section 488 of the Code of Criminal Procedure was Rs. 100 irrespective of the number of children in whose favour the order of maintenance is passed., This contention of the learned counsel for the respondent is not supported by the language of the section itself and he could give no satisfactory reason why the decisions in Kent v. Kent (I L R 49 Mad. 891) Bulteel v. Bulteel (A I R 1938 Mad. 721) and Tulsi Das v. Sm. Saraju Dai Devi (A I R 1933 Cal. 406), wherein it was held that the sum of Rs. 100 mentioned in section 488 of the Code of Criminal Procedure was the maximum allowance which could be ordered in favour of one of the applicants, should not be held to have laid down the law correctly. I am in respectful agreement with the view expressed in the above‑mentioned three decisions and would hold that the sum of Rs. 100 mentioned in section 488 of the Code of Criminal Procedure is the maximum that can be allowed to each 'applicant, and if the application is made by more than one person, each of them could be awarded maintenance allowance at the rate of Rs.

100. It was nest contended by the learned counsel for the respondent that as the children of the respondent were refusing to live with him they were not entitled to be granted any maintenance. It is established on the record that Mian Muhammad Din is now living with his second wife in a house in Baghbanpura where at least one brother of his wife and his children are also residing. It was admitted before me that the second wife of Mian Muhammad Din made a report to the police against some of his children who had gone to visit him at the house where he is residing with his second wife, alleging that they had broken some articles in that house. In these circumstances, it is obvious that the children cannot live with the second wife of their father amicably and in view of the fact that at least one brother of the second wife is living in the house along with his sons and daughters, it would not be proper that the daughters of Mian Muhammad Din from his first wife should live in the same house with him and his second wife. In view of what I have said above, I have arrived at the conclusion that the recommendation of the learned Additional Sessions judge cannot be thrown out on any valid ground. The only question to consider, therefore, is to what extent the order of the Magistrate should be modified in the light of the recommendation of the learned Additional Sessions Judge. Having given anxious consideration to the question, I have decided that the six children of Mian Muhammad Din in whose favour the recommendation has been made by the learned Additional Sessions judge are entitled to at least half his income and I would, therefore, direct him to pay Rs. 170 a month to his children, Muhammad Javed, Muhammad Parvez, Mst. Khurshid Begum, Mst. Jamila Rehana, Mst. Shakila Farzana and Muhammad Saleem. I do not find it necessary to increase the allowance of Rs. 50 each granted by the Magistrate to Muhammad Javed and Muhammad Parvez, and direct that Rs. 70 per month, which will be barely sufficient for their food and clothing, be given to the other four children mentioned above. A.H. Order accordingly.