P L D 1959 (W (PLP)

Where the wife is forced to or compelled to leave the house of her husband, by the husband himself then the child, which she takes along with her and whose custody she has a right in law to retain, is entitled to get a maintenance from her husband. Mst. Hamida Begum v. Sayed Mashaf Hussain Shah P L D 1958 S C (Pak.) 284 ref. Abdul Samad for Petitioner. S. Sibatul Hassan for Respondent. Date of hearing: 7th September 1959. Muhammad Sabir, son of Qutbuddin, and Mst. Iqbal Begum were married to each other about two and a half years ago. Of this marriage they have a daughter who is now a little above one year old by the name of Mst. Musarrat Parveen Mst. Iqbal Begum and Muhammad Sabir lived together in a house for some time when they fell out with each other and Mst. Iqbal Begum, as she said in her evidence, was turned out of his house by Muhammad Sabir, and thereafter she started living with Gulab Shah, her sister's husband, where her mother is also residing. Mst. Musarrat Parveen was kept back by Muhammad Sabir, but in due course of time Mst. Iqbal Begum succeeded in getting her custody. It is admitted that this girl is now living with her mother. Mst. Iqbal Begum made an application under section 488, Criminal Procedure Code, on the 31st of December 1958, that she and her daughter should be granted maintenance because Muhammad Sabir had neglected or refused to maintain them. The learned trial Magistrate declined to grant the maintenance to Mst. Iqbal Begum, but he accepted the application in so far as Mst. Musarrat Parveen was concerned, and fixed Rs. 30 per mensem as her maintenance. Muhammad Sabir preferred a revision petition in the Sessions Court which was dismissed, and he has, therefore, now come up on revision to this Court.

2. The learned counsel for the petitioner has argued that under Paragraph 354 of the Muhammadan Law written by Mullah, 1950 Edition, a female who goes and resides during the subsistence of the marriage at a distance from her husband's place of residence, loses the right of the custody of the child. He contends that as Mst. Iqbal Begum has herself left the house of her husband and is residing in her sister's house, therefore, she has lost the custody of the child, and should, there fore, not be granted the maintenance. In support of his argument he has quoted Mst. Hamida Begum v. Sayed Mashaf Hussain Shah (P L D 1958 S C (Pak.) 284). The facts of this case were that the husband and the wife who were Shias by faith were married in 1942. They got a son by the name of Najmul Hassan in 1945. The couple lived together till December 1953 when differences arose between them with the result that the wife was divorced by the husband in March 1954. In August 1955, the wife made an application under section 488, Criminal Procedure Code, claiming maintenance for herself and for her minor son who was living with her. The learned Magistrate found that Sayed Mashaf Hussain had divorced his wife, and therefore, she was not entitled to any maintenance allowance for herself. He, however, directed him to pay Rs. 60 per mensem as maintenance of his son. On revision, the High Court of West Pakistan reversed the decision of the two 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. Their Lordships of the Supreme Court upheld this view and dismissed the appeal, which was filed in that Court after obtaining the special sanction therefore.

3. The question which has to be seen, therefore, is as to who is entitled to the custody of the child. The learned counsel for the petitioner has not denied that Mst. Iqbal Begum is entitled to such custody until the girl attain puberty. He, however, wants me to subscribe to a very broad principle that if the wife removes the child from the house of the husband, then the husband is not liable to pay the maintenance. If such a view is adopted, then, in my opinion, it would lead to some fantastic results and injustice to the minor. The reasonable view which can be taken in the circumstances of the case is that if the wife without a reasonable cause takes away the child from the house of her husband, then she is not entitled to demand maintenance from the husband, because the husband in that case cannot be said to have either refused or neglected to maintain the child. The responsibility in such a case of the child not being maintained by the husband rests entirely upon the shoulders of the wife. But, where the wife is forced or compelled to leave the house of her husband, by the husband himself then the child in which she takes along with her and whose custody she has al right in law to retain, is entitled to get maintenance from him. In the case in hand, it is quite clear from the admission made by the husband that he is living in the same house along with his sister, who has got several children. He has also admitted that his sister and his wife continuously quarrelled with each other as a result whereof the wife left the house. He is not prepared to get another house for his wife, nor is he prepared to ask his sister to go and live somewhere else. If the sister is allowed to live in the house and the husband wants to take the wife to the same house, then the root cause of the trouble is still there, and it would be futile for the wife to go and live there and to go away again after quarrelling with the sister. Apart from that, there is some dispute between the husband and the wife over the ornaments also. My own feeling is that the ornaments which a wife gets from her parents or husband at the time of her marriage are entirely her own property. Similarly, if the husband purchases ornaments and gives them to his wife after the marriage they at once become her property. I am prepared to confess that the wife has no right whatsoever to dispose of the ornaments or to give them to lie, own people, and where she does that, then the husband has got a right to come forward and prevent her from doing so just as the wife would have the right to prevent her husband to waste away the property or to gift it away to people other than his own children. After the marriage, the property of the husband and the wife is primarily meant for their children. There is no evidence upon this record that Mst. Iqbal Begum had disposed of the ornaments or she intends to do so, nor is there any suggestion made upon the record that she wants to give these ornaments away to her mother or her sister. In the circum stances of the case, I do not see what dispute there can be between the husband and the wife over the ornaments. In any case, the sister of the husband has no justification to fight with Mst. Iqbal Begum over the ornaments in which she has no interest whatsoever. I am, therefore, positively of the view that the circumstances which are the creation of Muhammad Sabir himself have compelled Mst. Iqbal Begum to go and live with her sister and keep the daughter with her as in law she is entitled to do. It is the duty of the father to maintain the child living with the person entitled to its custody. If he does not maintain the child then the presumption is that he leas refused to do so. Which presump tion of course can be rebutted by some satisfactory evidence which in the instant case, is conspicuous by its absence. I, therefore, think that the learned trial Magistrate was perfectly right in fixing the maintenance for the child, and considering the difficult times that we are in allowance of Rs. 30 per mensem is certainly not excessive. The revision petition fails and stands dismissed. K. B. A. Petition dismissed.