2004 PLP 768 (YLR)

Maintenance of minor children-- Custody of child retained voluntarily or against wishes of father by a person not entitled to custody

Liability of father to maintain such child

Scope

Father not liable to maintain a child separately, if latter keeps away or is kept away by someone not entitled to custody, from his house without his consent

Father is bound to maintain an indigent child himself, but not through another, unless so directed by the Qazi or Court

Child already being voluntarily maintained by another does not stand in need of food, cloth or lodging, thus, cannot require father to pay maintenance

Person maintaining child of another voluntarily without reference to his father is ,not entitled to claim his maintenance from father

Where father is entitled to custody of minor son under personal law, then he cannot be forced to pay maintenance for him, if his wife/ex-wife retains his custody against his wishes

If father establishes that he had all along been anxious and made bona fide demands for custody of minor child, whose legal guardianship under personal law vested in him, then he can well defeat application for grant of maintenance of his child. Kachi Muhaidia Tharaganar v. Sainambu Ammal and others AIR 1941 Mad. 582; Dinsab Kasimsab v. Muhammad Hussen Dinsab and another AIR 1945 Bom. 390 and 1943 Bom. LR 823 fol. A.K. Dogar for Petitioner. The respondents Nos. 1 and 2 are the minor children of the petitioner, born, as a result of his wedlock with Mst. Sabahat Akhtar. The said parents were married on 6-1-1986 and unfortunately the marriage stood dissolved on 9-1-1991. According to the terms of the divorce recorded in writing the children were to remain in the custody of their mother and were to be maintained by Muhammad Rafiq the late father of the said lady. On 11-12 2002 the respondents Nos.1 and 2 filed a suit against the petitioner claiming maintenance at the rate of Rs.5,000 per month w.e.f. 1-12-1996 as also future maintenance at the same rate. The petitioner resisted the suit on the basis of the terms of the said divorce agreement. On 7-2-2003 the learned Judge, Family Court, passed an order directing the petitioner to pay maintenance to the respondents Nos. 1 and 2 at the rate of Rs.1,000 per head w.e.f. the date of filing of the written statement, which according to the available copy is 10-1-2003.

2. Learned counsel for the petitioner contends that in view of the law laid down in the case of Mst. Ghulam Fatima v. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore 596) his client is not liable to pay any maintenance to his children and as such the impugned order is without lawful authority.

3. The admitted facts are that the respondents Nos. 1 and 2 are the children of the petitioner and are living with their mother. The allegations in the plaint are that the petitioner has not provided any maintenance to the said children. In response while denying the liability, the petitioner at the same time has averred that he had been providing some maintenance to the children. Now so far as the said judgment in the case of Mst. Ghulam Fatima is concerned, the facts of the said case are that she was married to Sh. Muhammad Bashir and bore him a daughter in the year 1940. She was divorced in 1946. The said daughter remained in the custody of Mst. Ghulam Fatima till 28-5-1953. Throughout this period maintenance was neither claimed nor paid by Sh. Muhammad Bashir, Mst. Ghulam Fatima contracted a second marriage in May, 1950 and on 11-10-1950 Sh. Muhammad Bashir filed an application for the custody of the minor daughter. The matter was decided by a learned Senior Civil Judge on 19-7-1952 in terms that the daughter will remain with the mother till she attains the age of 13 i.e. until 20-11-1953 where-after she was to be handed over to Sh. Muhammad Bashir. He filed an appeal in this Court which was partly allowed inasmuch as Ghulam Fatima was directed to hand over the custody of daughter to Muhammad Bashir on 1-4-1953. The custody of the daughter was not taken over by Muhammad Bashir on 1-4-1953. On 13-5-1953 Ghulam Fatima filed a suit for recovery of Rs.900 against Muhammad Bashir stating that this is the amount she had spent on the maintenance of the minor for three years preceding the institution of the suit. According 'to his Lordship. "The sole question which fell to be decided was whether in the circumstances of this case the mother could claim from the father the amount she spent on the maintenance of her minor daughter during the three years next preceding her suit". The learned Civil Judge granted the decree but the learned District Judge allowed the appeal and dismissed the suit on the ground that the mother was not during that period entitled to the custody of the minor and had refused to hand her over to the father on demand by the latter. Thereafter his Lordship referred to the judgments in the cases of Kachi Muhaidia Tharaganar v. Sainambu Animal and others (AIR 1941 Mad. 582) and Dinsab Kasimsab v. Muhammad Hussen Dinsab and another (AIR 1945 Bombay 390) and deduced that a father is not liable to maintain a child separately if the latter keeps away, or is kept away by someone not entitled to its custody, from his house without his consent. In other words, a father is bound to maintain an indigent child himself but not through another unless so directed by the Qazi or the Court. It was then observed that a child, who is being already voluntarily maintained by another and therefore, does not stand in need of his food, clothing or lodging, cannot require its father to pay maintenance. Similarly, a person maintaining the child of another voluntarily without reference to its father would not be entitled to claim its maintenance from the father. Applying the said test to the facts of the case before his Lordship, his Lordship observed as follows at page 600 of the report:-- "Even if the plaintiff were entitled to recover un-decreed maintenance I would hold that in the circumstances of this case she had not maintained the child on behalf of the father. It is an admitted fact that the plaintiff never claimed, and the defendant never paid, any maintenance ever since the plaintiff was divorced by the defendant in 1946. It was only when she had to hand over the custody of the child to the father in pursuance of the Court's order that she filed the present suit to recover maintenance for such period as was not, according to her, barred by the law of Limitation. Indeed in the previous case for the custody of the child it seems to have been contended on behalf of the mother that she was able to maintain the minor out of her own pocket."

4. I have no hesitation whatsoever in observing that the facts of the present case are not similar to those of the said case before his Lordship. A somewhat similar proposition came up before the Hon'ble Supreme Court of Pakistan in the case of Mst. Hamida Begum v. Syed Mashaf Hussain Shah (PLD 1958 SC (Pak.) 284). In this case the divorced couple were Shias. Application was filed for grant of maintenance and the Magistrate awarded maintenance to the son. The father filed a revision in the West Pakistan High Court and it was held that since under the Personal Law he is entitled to the custody of his minor son, he cannot be forced to pay maintenance fort him if his ex-wife retains his custody against his wishes. Their Lordships held that this would be relevant consideration in the matter of grant of maintenance and in case the father establishes that he had all along been anxious and made bona fide demands for the custody of his minor child whose legal guardianship under the personal law vested in him, he can well defeat application under section 488, Cr.P.C.

5. Now the said proposition affirmed by the Hon'ble Supreme Court is somewhat in line with the opinion of Justice Kania in 1943 Bom. LR 823 reproduced by his Lordship with approval at page 599 of the said case of Mst. Ghulam Fatima. I do not find a word in the written statement that the petitioner was ever anxious or made bona fide demands for the custody of his children whether son or daughter. It can certainly not be said, at least, prima facie, that the children remained with the mother against the wishes of the father.

6. I, therefore, do not prima facie find any force in the said contention of the learned counsel. This observation shall, however, be treated by the learned trial Court, who has to decide the case on its merits as tentative for purposes of the interim order that has been passed by it.

7. Now the other aspect of the case is that the ultimate impact of the said judgment in Mst. Ghulam Fatima's case in that the child would not be entitled to claim past maintenance in the circumstances as existed in the said case. Here in the present case the learned Judge, Family Court, has passed this order in terms of the provisions of section 17-A added to the Family Courts Act, 1964 vide Ordinance No.1V of 2002 w.e.f. 1-10-2002. I have already statue above that the order has been passed w.e.f. a point of time which is after the date of institution of the suit by the said children of the petitioner and by no stretch the said judgment even upon its interpretation by the learned counsel can be said to spell out a bar upon passing of an order by the Judge, Family Court, who by all means is a Qazi, for current maintenance which he is authorized by the said law to pass. The writ petition is dismissed in limine. S.A.K./M-2073/L Petition dismissed.