P L D 1958 (W (PLP)

"It clearly follows from the above observations of the learned Additional Sessions Judge mentioned above that the case of the minor daughter was duly considered, when the revision petition was dismissed. There has been no change of circumstances since then. The minor daughter for whom maintenance is now claimed is only four years old. She has not yet attained a school‑going age. I am of the opinion that her application for an award of maintenance for the child is merely a device by which she is endeavouring to obtain maintenance for herself. In view of the circumstances, I see no reason to order the respondent to provide separate maintenance for his minor daughter, now said to be living with her mother". On a revision filed against this order, the learned Additional Sessions Judge, Lahore, has recommended that a sum of Rs, 10 per month may be ordered to be paid for the maintenance of the child, as the learned Magistrate was not right in dismissing the application when the daughter's case was not disallowed on merits in the first application the child was nearly five years old, had reached school‑going age, and needed food and garments, the mother being under no obligation to provide her with the necessities of life. It is observed further that the father was bound to maintain the child, even if she lived with her mother against his will, and as no maintenance was provided to the child during the last three or four years, there was a neglect or failure on the part of the father to maintain the child within the meaning of section 488, Cr. P. C.

2. The learned counsel for Mst. Kaneez Khalida, in supporting the recommendation, has argued firstly that the case of the child was never considered or decided on merits, secondly, the circumstances have changed since the last application and, thirdly, the maintenance now claimed is for a different period and this application was not barred by either the principle of res judicata or under section 403 of the Code of Criminal Procedure. He relies on Po So v. Ma Kyin Me (9 Cr. L J 21) and Maung Hla Maung v. Ma On Kin (78 Cr. L J 912). The learned counsel for Ibrahim respondent urges that the second application under section 488 is not com petent and is barred on the principle of res judicata. He relies on Sadr‑ud‑Din v. Mst. Musahib Khanam (18 Cr. L J 326). The cases cited by the learned counsel for the parties may, therefore, be examined to consider whether the present application made on behalf of Mst. Kaneez Khalida is barred.

3. In Sadr‑ud‑Din v. Mst. Musahib Khanam, Mst. Musahib Khanam had applied for maintenance in 1914 under section 488 of the Code of Criminal Procedure, alleging cruelty as an excuse for not living with her husband, Sadr‑ud‑Din. This application was dismissed on 10th of August 1914 on the ground that she had failed to prove the alleged cruelty. She then brought a fresh application, in which the Court found the allegation of cruelty proved and ordered Sadr‑ud‑Din to pay her Rs. 15 per mensem as maintenance. On revision to the Punjab Chief Court, it was held as follows, relying on Laraiti v. Ram Dial (I L A 5 All. 224) :‑ "I note first that since the decision of the former application the woman has not been living with her husband, so there is no case of subsequent cruelty. It is the same allegation of cruelty in the past. This allegation has Once been held by a competent Magistrate to be not proved, and if the woman is to be allowed to revive the same charge there seems to be no finality whatever in such matters. If slit can revive it once she can revive it a dozen times. A dozen Magistrates might in succession ‑hold cruelty not proved and she might still bring a fresh application. * * * * * * When one Magistrate has fully enquired into and adjudicated on a certain charge, and a second Magistrate then holds a further enquiry into the same charge, the effect is in practice much the same as if the second Magistrate exercised the rights of an Appellate Court, though, of course, there is this difference that the parties produce evidence de novo". The above case is an authority for the proposition that once a matter has been adjudicated upon on merits and finally decided, it should not be re‑opened on the same facts on the principle of finality by a Court having the same powers, as in the first case. This case does not hold that if circumstances have changed or if there has been no decision on merits or the period is different, there can be no second application under section 488 of the Code. On the contrary it was specifically held that "had there been charges of cruelty subsequent to the former decision, the case would, of course, have been different". In Laraiti v. Ram Dial, in spite of a previous decision, as will. be observed later, an enquiry as to immorality of the wife relating to a succeeding period was expressly ordered.

4. In the case Po So v. Ma Kyin Me, the parties were husband and wife, living apart. The respondent Ma Kyin Me applied to the Sub‑Divisional Magistrate for an order for Po So, the husband to pay an allowance to support their child. The Sub. Divisional Magistrate passed the following order :‑ "Respondent offers to maintain the complainant in a separate house, but she refuses to accept the offer. She alleges no ill- treatment. I have consequently no power to interfere. Case dismissed". A second application was filed before the successor of the learned Sub‑Divisional Magistrate, who made an order for the main tenance of the child after duly hearing the parties. On a revision to the Chief Court of Lower Burma, an objection was taken that the order dismissing the first petition was a bar to the second, relying on Laraiti v. Ram Dial in which Mahmood, J. had observed as follows :‑ "I am of opinion that the order of the District Magistrate, dated the 2nd March, 1880, must be taken to have adjudicated upon all the facts antecedent thereto and connected with the objection of Ram Dial as to his wife's leading an adulterous life. Upon the general principles of the rule of res judicata, I am of opinion that the Deputy Magistrate was wrong in law in re‑opening matters already adjudicated upon, and his order directing the discontinuance of maintenance on the ground of facts antecedent to the District Magistrate's order must be held to be illegal. "I therefore set aside the order of the Deputy Magistrate, dated the 4th August 1882, and direct that he should hold an enquiry de novo in regard to the adulterous conduct of Laraiti, alleged by her husband Ram Dial, with reference to the period subsequent to the District Magistrate's order of the 2nd March 1840": Mr. Justice Irwin, Officiating, C. J., dealing with the objection observed as follows :‑ "With all respect I would say that res judicata does not bar any proceedings by general principle, but only by specific enactments, as contained in section 13 of the Code of Civil Procedure and section 403 of the Code of Criminal Procedure. It is not contended that either of those sections applies to the present case. I would certainly say that when a Magistrate to whom an application is made knows or has reason to believe that a similar application on the same facts has previously been adjudicated on, he ought not to act on the application with out considering the previous decision, but I am unable to say that he is wrong in law when he does so, and that his pro ceedings are therefore bad and void regardless of the merits. "Moreover, in this case the former Magistrate seems to have misapprehended the nature of the application. His order appears to be one refusing to make an order of maintenance for the wife, which was not applied for. He did not really adjudicate on the application for maintenance for the child". Thus a second application was not found barred in law on the principle of res judicata, but it was observed that a Magistrate ought not act on a second application regardless of the previous decision, and as the case of the maintenance of the child had not been decided on merits in the first application, the order made for the maintenance of the child on the second application was not interfered with.

5. In Maung Hla Maung v. Ma On Kin, the petitioner was ordered to pay maintenance for each of his two sons. It was urged in revision on his behalf that a previous application for maintenance having been dismissed in default, the matter was res judicata, and the payment of maintenance could not have been ordered. Relying on the above observation of Mr. Justice Irving, it was stated: "I am in entire agreement with those remarks and would hold that the former application which was never adjudicated upon does not bar the present one which was not filed until the 14th October 1926". This case therefore decides that if a previous application has been dismissed in default, a second application is entertainable, there being no decision on merits.

6. Reference may also be made to Mating Tin v. Ma Hmin (A I R 1933 Rang. 138) a Full Bench case. In this Ma Hmin had obtained an order from the Court under section 488 of the Code of Criminal. Procedure against her husband Maung Tin on 17th February 1926, for the maintenance of their child Maung Mya Han. On 24th June 1930, she applied to the Court for realisation of arrears of maintenance for four months, and on 14th July 1930, the Magistrate passed the following order: "Applicant and respondent are present. The respondent is now a hpoongyi and owns no movable property. I do not, under the circumstances see how recovery can be made and in fact so long as he remains a hpoongyi, I will not enforce the order. The application is therefore rejected, and the case closed". On 23rd June 1932, Ma Hmin filed a second application to recover arrears of maintenance under the order of 17th of February 1926, for ten months prior to the date of the application and on 12th July 1932, an order to the following effect was passed by the Magistrate :‑ "No sufficient cause has been shown under section 488 (3). Respondent being an able‑bodied person, though an ordained monk, shall pay the arrears". On a revision to the Rangoon High Court, Mosely, J., referred the following question to the Full Bench: ‑ "Whether the‑dismissal of an application to execute an order for maintenance is a legal bar to an order allowing execution of that order of maintenance on the, same ground on a subse quent application ? On a consideration of this question, the Full Bench having noted Laraiti v. Ram Dial found as follows :‑ "I am clearly of opinion that an order refusing to enforce the maintenance order in respect of arrears of maintenance for one period does not operate as a bar to a subsequent application to enforce the order for arrears of maintenance that have accrued during a different and a later period". On this authority, an application for realisation of arrears of maintenance for a different period than the one adjudicated upon can be entertained; in spite of a former adverse decision. The principle that can be deduced is that the rule of res judicata can not apply to a different period which was never adjudicated, for it can only apply to matters directly and substantially in issue between the parties, heard and finally decided.

7. On a consideration of the whole question, including the authorities mentioned above, I am of opinion that section 488 of the Code of Criminal Procedure creates a statutory right to maintenance and provides for the grant of a speedy and summary remedy to which the Code of Criminal Procedure applies, but not section 11 of the Code of Civil Procedure, that is the principle of res judicata, which is applicable to civil cases, nor is section 403, Cr. P. C. embodying the principle of autra fois acquit attracted, and this is not even claimed before me by the learned counsel for the respondent. 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, where none exist by a Court of co‑ordinate jurisdiction, though the evidence has to be recorded de novo. If, however, the case of the maintenance has not been decided on merits, i.e., was dismissed in default; or if the circum stances have changed, and the second application is made on fresh grounds for a different period, there can be no bar to a second application being entertained and decided on its merits, bearing in mind of course the decision in the first application. If, for example, the wife declines to live with her husband and her application for maintenance is dismissed, but she subsequently changes her mind and offers to live with her husband, who then refuses or neglects to maintain her, and she applies to the Court under section 488, Cr. P. C., there is no reason why the second application for maintenance in the changed circum stances for a different period should not be entertained. If as in Sadr‑ud‑Din v. Musahib Khanam a second application is made for a different period, but on precisely the same facts, as have already been adjudicated upon, the application is not barred by any specific provision of law but is not to be gone into on grounds of finality, which attaches to a matter fully and finally, decided. Whether a particular matter is so decided has to be determined in each case, but if the facts and circumstances relied upon in the second application and the period for which maintenance is claim ed are different, or have not been adjudicated upon, there is no bar in law to the entertainment of the second application.

8. In the present case, there is no, doubt that the learned Magistrate in the first application did not decide the question of neglect to maintain the child, Mst. Kaneez Khalida. In observ ing that the girl surely had to live with the mother, who had declined to live with the husband the learned Additional Sessions Judge was evidently influenced by the tender age of the girl and did not consider the liability of the father to maintain the child which is independent of his duty to maintain his wife. If the wife has the right to the custody of the child, the father is bound to maintain the child during that; period, even though the wife may refuse to live with her husband and may be found disentitled to maintenance under section 488, Cr. P. C. It is of course open to the father to obtain the custody of the child through Court to avoid this liability. In Syed Mashaf Hussain Shah v. Mst. Hamida Begum (P L D 1957 Lah. 220) which was upheld in Mst. Hamida Begum v. Syed Mashaf Hussain Shah (P L D 1958 S C (Pak.) 284) it has clearly been held 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 that he would maintain the child only on condition of his living with him. In such a case there will be neglect or refusal to maintain if the father refuses to pay for the maintenance of the child. It may be urged that the Crimi nal Court is not a Court, which should determine the right of custody. But there is no other reasonable alternative open except that the Criminal Court should have regard to the prima facie right of custody. Any other interpretation of the section may lead to great hardship. For the mother, though entitled to custody of the child, would be forced to approach the Guar dian Court in the first instance while the need for maintenance may be urgent. There can be no objection to our interpreting the words `neglect or refusal to maintain' as including a case where the father refuses to pay for the maintenance of the child who is living with his mother, when the mother is, accord ing to the Personal Law prima facie entitled to custody of the child. The Criminal Court should, therefore, award mainte nance in such cases leaving it to the father to approach the Guardian Court for an order for custody of the child under section 25 of the Guardians and Wards Act, if he challenges the ` mother's right to custody".

9. In the present case, I am of opinion that Mst. Bashiran Bibi is entitled to the custody of Mst. Kaneez Khalida under the Muhammadan Law until she attains puberty, (unless a Guardian Court holds otherwise) and if the husband does not pay for her maintenance, he has refused and neglected to pay for her main tenance, and her maintenance can be ordered under section 488 of the Code of Criminal Procedure. The, case of the minor for her maintenance was never decided on merits in the first application. The second application, which is also for a different period did lie and the learned Magistrate was wrong in not deciding it on merits. The argument of the learned Magistrate is also fallacious that the application is a mere device to obtain maintenance for herself. The maintenance could be so fixed as to make it a main tenance for the child and not the mother. As there is a duty in the father to maintain the child, he has to pay for her main tenance, and it is not a legitimate excuse for him to refuse to maintain the child on the ground that the mother does not live with him. It is also clear that since the decision in the first appli cation in 1955, circumstances of the child have changed. Mst. Kaneez Khalida is now over five years old and is of school going age. She must not only be needing food but also cloths and other expenses. In these circumstances, I agree with the recommendation of the learned Additional Sessions Judge that she is entitled to separate maintenance and there has been a refusal on the part of Ibrahim respondent to maintain her.

10. On the question of the amount of maintenance, Mst. Bashiran Bibi claims a maintenance of Rs. 60 p.m. for the child. As P. W. 1 she states that Ibrahim respondent draws a salary of Rs. 150 or Rs. 175 per mensem and has also income from land and a kharas. She also claims that he had agreed to pay her Rs. 30 as maintenance per mensem which was never paid, and he had even agreed to pay Rs. 20 p.m. towards the maintenance of the daughter but had again not kept his word. Ibrahim res pondent, as his own witness, states that he is getting Rs. 3‑8‑0 per day from Koh‑i‑Noor Textile Mill and has an annual income of Rs. 50 or Rs. 60 from two killas of land allotted to him but the kharas is not being worked. He has admitted that he had agreed to pay Rs. 30 as maintenance in a Panchayat once but as Mst. Bashiran Bibi did not come to live with him he did not pay her anything. Even at a conservative estimate of his income the proposed maintenance of Rs. 10 p.m., for the child is very reason able. I accept the recommendation and order that the respondent shall pay Rs. 10 per mensem for the maintenance of Mst. Kaneez Khalida. As her needs grow, this amount can be increased on a proper application made to a competent Court, if the income of Ibrahim permits it. K. B. A. Recommendation accepted.