P L D 1958 Supreme Court (Pak (PLP)

S. A. RAHMAN, J.‑--This is an appeal by special leave arising out of proceedings taken by Mst. Hamida Begum against her former husband, Sayyed Mashaf Hussain, under section 488, Criminal Procedure Code. The relevant facts may be briefly summarized as follows. The parties are Shias and were married in 1942. A son, Najmul Hasan, was born to her during coverture, in 1945. he parties lived together in the house of the bride's parents at Lahore, till December 1953. Differences then arose between them, which culminated in divorce being granted by Mashaf Hussain to his wife, in March 1954. Apparently there was first an oral divorce and later, the husband got a regular divorce‑deed registered and sent it to the wife by post, but she refused to accept the cover containing the deed. On the ?2nd of August 1955, an applica tion was moved under section 488, Criminal Procedure Code, by Mst. Hamida Begum in the Court of a Magistrate, First Class, Lahore, claiming maintenance for herself and for her minor son who was living with her. The learned Magistrate found that Sayyed Mashaf Hussain had divorced his wife and, therefore, Hamida Begum was not entitled to any maintenance allowance for herself. He directed Mashaf Hussain to pay Rs. 60 per mensem for maintenance of his son. Both parties went up in revision to the Sessions Court, but the Additional Sessions Judge, Lahore, by order, dated the 31st of July 1956, declined to interfere with the order passed by the Magistrate. The husband moved the High Court of West Pakistan in revision and a learned Single Judge of that Court reversed the decision of the Courts below and held that, as Mashaf Hussain was entitled to the custody of his minor son, he could not be forced to pay maintenance for him if his ex‑wife retained his custody against his wishes. Special leave was granted in this case for conside ration of the question, whether the petitioner's right to custody of the minor child was a relevant consideration under section 488, Criminal Procedure Code. The foundation for the exercise of jurisdiction under sec tion 488, Criminal Procedure Code, is a finding that the person concerned "having sufficient means has neglected or refused to maintain his wife or his legitimate or illegitimate child unable to maintain itself." It would be a question of fact to be deter mined on the circumstances and evidence in each case whether neglect or refusal to maintain the wife or the child, as the case may be, has been made out or not. The evidence in the instant case has, therefore, to be scrutinised in order to find out whether the condition precedent for an order of maintenance to be made tinder section 488, Criminal Procedure Code, in respect of the minor son, existed or not. The question was posed in the High Court whether a father, prima facie entitled under the ordinary rules of Muslim Law to the custody of the child and prepared to maintain the child if it was handed over to him or desiring that the child should live with him, could be said to be guilty of refusal or neglect to maintain, within the meaning of section 488, Criminal Procedure Code, if he declined to provide for the child unless his wishes were met. After a review of some of the authorities, the learned Judge, who decided the revision petition in the High Court, came to the conclusion that in such circumstances neglect or refusal to maintain should not be attributed to the father. Mr. Mazhar Ali Azhar, who appeared for the appellant before us, has strenuously contended that the question whether the father was entitled under Muslim Law to the custody of the child, was completely foreign to the scope of section 488, Criminal Procedure Code, and suggested that if the custody of the child happened to be with the mother, albeit a divorced wife, there was absolute liability of the father to support the child irrespec tive of any other consideration. In this connection, reliance was placed on certain authorities reported as Mst. Mehtab Bibi v. Alla Bakhsh (17 P R Cr. 1885) ; David Sassoon v. Emperor (A I R 1925 Bom. 259) ; Ebrahim Mahomed Mukri v. Khurshedbai Ebrahim Mukri (A I R 1941 Born. 267) ; Maung San Pe v. Ma Lai Mai (A I R 1932 Rang. 183) ; My Shwe Kvin v. Maung San Nvein (A I R 1937 Rang. 205) and Kuppala Krishlappa v. Premaleelanzani (A I R 1942 Mad. 705). In the first case cited, a Division Bench of the Punjab Chief Court expressed the view that a Magistrate had no jurisdiction, in a proceeding under section 488 of the Code, to determine who is entitled to the custody of a child. It was added that if the father claimed to have it made over to him, his proper course was to apply to the Civil Court for an order declaring him its guardian and directing it to be handed over to him. In the second case it was observed by a Division Bench of the Bombay High Court that an offer to maintain the children in the future, was not sufficient of itself to debar the Magistrate from making the order under subsection (1) of section 488, Criminal Procedure Code. At the same time the learned Judges thought that the Magistrate would be entitled to consider the circumstances in which the offer was made, and whether it was right and proper that the children, if not in the custody of the father, should be handed over to him. In that particular case, it was found as a fact that it was proper that the children should remain with the mother and that there was neglect on the part of the father to maintain the children. This decision does not appear to afford any assistance to the contention raised on behalf of the appellant. Incidentally, that case did not relate to Muslims and is not strictly in point. In the third case, the husband and wife were living apart and Beaumont, C. J., in a short judgment made the following observations : "The object of section 488, no doubt, is to avoid vagrancy by providing that a Magistrate may up to a limited extent see that a wife and children are maintained by a husband or a father able to maintain them. But I think that the Magistrate must take the facts as he finds them to be. If 'in fact the children are living with the wife and if in fact, the father is refusing or neglecting to maintain them where they are living, I think that the Magistrate has jurisdiction to make an order. If the father's case is that the children ought not to be living with the wife, but ought to be living with him or under his direction, then he must take proper proceedings in a civil Court to get the children removed from the custody of the mother. If the civil Court makes an order under which the children cease to reside with the mother, and if the father is then willing to provide for their maintenance, he can, of course, apply to the Magistrate under section 489 to modify his previous order." The two Rangoon cases apparently relate to Buddhists and, therefore, are not very helpful. In the 1932 case, Page, C. J. opined that a father is bound to maintain the child even though it is living with its mother against whom decree for restitution of conjugal rights had been passed. The correct procedure according to the learned Chief Justice, would be that the father should apply for custody of the child to the competent Court. At the same time, the learned Chief Justice was conscious of the force of the argument presented on behalf .of the father that where a husband whose wife had deserted him and had taken away the child, is prepared to take the child, it ought not to be held that the father was neglecting or refusing to maintain his child within the meaning of section 488, Criminal Procedure Code. In that particular case, the child was four years old and the learned Chief Justice thought there was reason for an order for a maintenance allowance till such time as the custody was repined by the father under order of the proper Court. In the 1937 case, a learned Single Judge of the Rangoon High Court laid down the proposition that where after the dissolution of marriage, a minor child, born during coverture, lives with the mother and the husband is admittedly the father of the child, it is his duty to make an allowance for its maintenance unless he can show that there has been no negligence or refusal on his part to support and maintain the child. On the fact, it was found i n that case that negligence or refusal of the father to maintain was proved. in the Madras case, Horwill, J. expressed the opinion that as long as the child is with the mother, she must be given sufficient to maintain the child, and the father must be relegated to the appropriate remedy for the custody, of the child by proceedings in a competent Court. In the learned judge's opinion it would be improper for the Court to refuse maintenance for the child merely because it was of the view that the mother had no right to the custody of the child. 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 were a 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 mainten ance 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 may be extremely anxious 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 488,1A 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. It may be conceded that section 488, Criminal Procedure Code, gives a statutory right of maintenance to the wife or the child and the boundaries of that right may not be coincident with a corresponding right available under the personal law to which the parties are subject. For instance, the right of an illegitimate child to maintenance is recognised by this section in opposition to the pertinent rule of Islamic Law, The provisions of section 488, Criminal Procedure Code, however, are 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 has been made from that law in the section itself.' Clearly, if maintenance is claimed by the wife, the question whether the conjugal relations still subsist between the parties, is to be decided with reference to the rules of the relevant personal law. 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 father to maintain the child in the absence of any express e 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 the child to live with some one 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 Pro cedure 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, principal and support may be found for this view even from some of the cases cited by learned counsel for the appellant before us. ' Coming to the facts of the present case we find that ever since the divorce took place, the respondent had been anxious to get the custody of his minor son. It is conceded that under Shia Law the father would be entitled to the custody of his minor son after he has attained the age of two years which is the normal weaning period for the child. The minor in the present case is now about 13 years of age. Even in the divorce deed it is stipulated that the child would be handed over to the father. The evidence given by the father in the Magistrate's Court was to the effect that his several demands for the return of the child after the divorce, had proved unavailing. The wife while making her statement in the Magistrate's Court made it clear that she was retaining the child because of her affection for him and that she was not prepared to part with the custody of the child in favour of the husband. The husband had even, applied to the Guardian Court for delivery of the custody of the child to him and we understand that the Guardian Court has since decided in his favour and on the 10th of April 1958, had ordered that the child be delivered to the father. This fact is not contested before us. It also seems that the child has again joined the mother in spite of delivery custody of the child to the father under orders of the competent court. In these circumstances, we agree with the High Court that no refusal or neglect on the part of the father to maintain the child was proved. The father, on these facts, was entitled to defeat the application for maintenance on the ground that the child should be allowed to live with him as a condition of his maintenance by the father. Section 488, criminal Procedure Code, was not, therefore, attracted to the case and no interference is called for by this Court with the order passed by the High Court: We dismiss the appeal with costs. A. H. Appeal dismissed.