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Criminal Revision No. 483 of 1966, decided on 20th September 1968.

S. 488‑Maintenance Father extremely negligent in maintaining his minor daughters Belated demand for custody and offer to maintain minors by father‑Cannot, in circumstances, be termed as sincere‑Order granting maintenance in favour of minors upheld.

Hamida Begum v. Mashraf Hussain Shah P L D 1958 S C (Pak.) 284 distinguished.

This is a revision under section 435, Cr. P. C. against the order dated 30‑11‑1965 of Sardar Manzoor Ahmad Khan Leghari, S. D. M., Wazirabad, ordering Ali Ahmad petitioner to pay a sum of Rs. 200.00 p. m. as maintenance allowance to his daughters, namely, Mst. Tanwir Bano and Shahina Bano.

2. The facts in brief are that Ali Ahmad petitioner was married to Mst. Akhtari Begum respondent about 22/23 years ago. She lived with her husband for 9/10 years and gave birth to 4 children out of whom Mst. Tanwir Bano and Mst. Shahina Bano are alive. Ali Ahmad petitioner divorced Mst. Akhtari Begum respondent and married another wife. Ali Ahmad petitioner used to visit Wazirabad where Mst. Akhtari Begum respondent was putting up. Mst. Akhtari Begum instituted proceedings under section 488, Cr. P. C. against the petitioner in the Court of S. D. M., Wazirabad contending that her husband in spite of having sufficient means to provide maintenance to her and her daughters was refusing to maintain them and prayed that he be directed to pay a sum of Rs. 200.00 p. m. as allowance to her and her two daughters.

3. Mst. Akhtari Begum respondent examined five witnesses besides herself. Muhammad Sharif (P. W. 1) and Abdul Hamid (P. W. 2) have stated to that Mst. Akhtari Begum was married to Ali Ahmad petitioner and that Mst. Tanwir Bano and Shahina Bano are their daughters. They further stated that Mst. Akhtari Begum was residing at Wazirabad for the last 9/10 years. Bashir Hussain (P. W. 3) stated that Ali Ahmad married a second wife about 12 years ago and turned out Mst. Akhtari Begum from his house who took up her residence with her parents at Wazirabad. He also stated that despite undertakings Ali Ahmad did not provide any maintenance allowance to his wife and daughters. He further stated that Ali Ahmad petitioner was a man of means and had an annual income of Rs. 6,000/7,000. He also stated that Ali Ahmad was a pensioner and also did business in cotton and sugar. Fazal Ahmad (P. W. 4) made a similar state ment as Bashir Hussain (P. W. 3). Muhammad Ilyas, Secretary Union Council (P. W. 5) produced relevant record of the proceedings between the petitioner and the respondent. Mst. Akhtari Begum appears as (P. W. 6). She stated that she was married to Ali Ahmad 22 years ago and she gave birth to four children out of whom two daughters, namely, fanwir Bano and Shahina Bano are alive. After 9/10 years Ali Ahmad turned her out of the house and married a second wife. She further stated that respectable of the brotherhood tried to reconcile the matter but the respondent refused to provide maintenance to them. She also stated that Ali Ahmad was a pensioner and a businessman and earned Rs. 9,000/10,000 yearly.

4. Ali Ahmad petitioner resisted the application and contended that Mst. Akhtari Begum respondent was married to him 22 years ago and that she remained with him for ten years. He also admitted that Mst. Tanwir Bano and Shahina Bano are his daughters. He also stated that he had divorced his wife about 12 years ago. Ali Ahmad petitioner appearing as his own witness stated that he wanted the custody of his daughters and wished to bear the expenses of their bringing up. He further stated that he filed a suit for the custody of the minors in the Court of Senior Civil Judge, Lyallpur and the said Court vide its order Exh. P. 3 dated 18‑12‑63 declared him entitled to the custody of the minor. He denied that he was dealing in the sugar business. He, however, admitted that he is an agriculturist.

5. The questions to be determined are whether Ali Ahmad petitioner neglected or refused to maintain his wife and children having sufficient means to maintain them. Abdul Hamid (P. W. 2), Bashir Hussain (P. W. 3), Fazal Ahmad (P. W. 4) and Mst. Akhtari (P. W. 6) have stated that Ali Ahmad petitioner despite his undertakings to provide maintenance to his wife and children failed to pay them anything and also did not take them to his house. Ali Ahmad petitioner on the other hand stated that he had been paying his daughters whenever they used to visit him at Lyallpur. He also stated that his brother Fazal Ahmad (P. W. 4) had brought them to Lyallpur and they were paid Rs. 60/70 at the time of their departure but Fazal Ahmad (f'. W. 4) has denied it and has stated that Ali Ahmad petitioner had refused to maintain his children. As regards the factum of the decision of the Civil Court holding Ali Ahmad entitled to the custody of the minors the petitioner has himself admitted that the suit is still pending. A perusal of order Exh. P. 3 would show that this was an ex parte decision as such the contentions of Ali Ahmad petitioner have no force and the learned S. D. M. has rightly held that Ali Ahmad petitioner neglected and refused to maintain his children. As regards the status of the petitioner Bashir Hussain (P. W. 3) and Fazal Ahmad (P. W. 4) have stated that Ali Ahmad has an annual income of Rs. 6,000/7,000. Mst. Akhtari Begum (P. W. 6) has stated that Ali Ahmad has an annual income of Rs. 9,000/10,000. She further stated that Ali Ahmad was a pensioner being a retired army personnel and that he also did sugar business. Ali Ahmad petitioner has admitted that he is an agriculturist but he denied that he is doing sugar business. Since Bashir Hussain (P. W. 3) and Fazal Ahmad (P. W. 4) have stated that Ali Ahmad petitioner has an annual income of Rs. 6,000/7,000 and the same has not been rebutted by Ali Ahmad petitioner, I consider their evidence regarding the income of the petitioner as true. Mst. Akhtari Begum being a claimant of the maintenance allowance appears to be exaggerating the income of the petitioner and as such I do not give any credence to her evidence. Ali Ahmad petitioner has married a second wife and four children have also been born out of the second marriage and as such it would be too severe to order the petitioner to pay a sum of Rs. 100.00 each to his daughters. I, therefore, consider the order of the learned S. D. M. as harsh and disproportionate to the income of the petitioner. Considering the means of the petitioner I am of the view that the petitioner be required to pay Rs. 50.00 p. m. each to both the daughters as maintenance allowance.

6. In view of my above findings the case may be reported to the High Court for appropriate orders under section 438, Cr. P. C.

Raja Muhammad Sabir for Petitioner.

Maqbool Hussain Shah for Respondent.

This case has been forwarded to the High Court by the Additional District Magistrate, Gujranwala for orders. The Sub‑Divisional Magistrate, Wazirabad had held in his order dated 30‑11‑65 that Ali Ahmad petitioner had neglected to maintain his two daughters Mst. Tanwir Bano and Mst. Shahina Bano and had ordered him to pay Rs. 100 per month as mainten ance to each one of them. The Additional District Magistrate, Gujranwala was moved in Revision. He concurred with the finding of the learned S. D. M., that Ali Ahmad had actually neglected to maintain his daughters but found that the amount of Rs. 100 for each one of them was rather excessive and reduced the same to Rupees fifty per month per child. Since he could not modify the order of the S. D. M. in this respect the case was sent to the High Court with the request to exercise its revisional jurisdiction.

2. Mst. Akhtari Begum was the wife of Ali Ahmad but was divorced about eight or nine years ago. The couple had four children from the wedlock but only two survived namely Mst. Tanwir Bano and Mst. Shahina Bano. After the divorce Mst. Akhtarti Begum was residing with her daughters at Wazirabad her parental town.

3. Mst. Akhtari Begum filed an application under sec tion 488 of the Code of Criminal Procedure before the S. D. M., Wazirabad that Ali Ahmad be compelled to maintain his two daughters. After recording the evidence the learned S. D. M. came to the conclusion that Ali Ahmad had neglected to maintain his daughters. He even did not know the name of the schools in which these two girls were reading. He admitted that he had never sent any amount to these girls by money order. He claimed that the girls had been visiting him at his village in Lyallpur district and he paid them money. This statement was found to be untrue. His own brother Fazal Ahmad P. W. 4 appeared in support of the application and stated that his brother had refused to maintain the two girls. The learned S. D. M. directed Ali Ahmad to pay Rupees one hundred per month as maintenance to each of the two daughters from the date of the institution of the application under section 488, Cr. P. C.

4. Ali Ahmad filed a revision before the Additional District Magistrate with the result noted above.

5. Raja Muhammad Sabir the learned counsel for Ali Ahmad has raised the following three points:

(1) That the learned S. D. M. had no jurisdiction to deal with this matter as the West Pakistan Family Courts Ordinance of 1964 had been applied to Gujranwala along with other two districts vide Notification No. Integ. 10‑31/64 dated 2‑11‑1965 while the learned S. D. M. decided the matter on 30‑11‑65.

(2) That the father is the lawful guardian of the girls who have grown up and that he has shown his readiness to maintain them and the Courts below have not properly considered this aspect of the case. It was also submitted that the petitioner had got an order in his favour from the Guardian Court directing the custody of the girls to be given to him.

(3) That the petitioner is not able to pay the maintenance of Rupees fifty each to his two daughters.

6. In my view none of these contentions can prevail. The West Pakistan Family Courts Act of 1964, was enforced on 2nd of November 1965, while the application under section 488, Criminal Procedure Code had already been made on 30‑4‑1964. It is correct, that after the enforcement of the West Pakistan Family Courts Act the matter mentioned in the Schedule to that Act are exclusively triable by the Family Courts, but there is no indica tion in the Act that cases pending before its enforcement were also to be effected. If the ouster of jurisdiction in respect of pending case was intended there should have been a definite indication by the Legislature. The contention regarding jurisdic tion can be repelled on another ground also. Under section 20 of the above Act the Government is authorised to invest the judges of the Family Courts with powers of the Magistrate First Class under section 488 of the Criminal Procedure Code. The investment of powers to Judges of Family Court was made from fifth April 1966, vide Notification of even date published at page 213 of the Statute part (West Pakistan) of P L D 1966. The order by the S. D. M. was passed in November 1965. At that time the Judges of the Family Courts had not been invested with powers under section 488, Criminal Procedure Code and the only competent power to hear the case was the S. D. M.

7. It has been found from the evidence that Ali Ahmad neglected to maintain his daughters for a long time. This fact was deposed to by his own brother. His plea that he had been paying maintenance to his daughters was found to be untrue.

8. The learned counsel refers to the case of Hamida Begum v. Mashraf Hussain Shah (P L D 1958 S C (Pak.) 284). It is to be pointed out that their Lord ships of the Supreme Court postulated a case where the demand of the father to maintain his children was bona fide. Since Ali Ahmad was found to be extremely negligent in maintaining his daughters his belated demand for their custody and his offer to maintain the daughters cannot be termed as sincere. The orders of the Courts below make mention of the pendency of litigation with regard to the custody of the girls. There is no evidence on this record to prove the correctness of the assertion of the learned counsel for the petitioner made today that the Guardian Court has decided the matter in his client's favour. Even if this is so the remedy for the petitioner is to apply to the Original Court under section 489 of the Criminal Procedure Code pointing out the change in the circumstances.

9. The quantum of maintenance is also not excessive. According to Akhtari Begum annual income of Ali Ahmad ranged from nine to ten thousand rupees per year. Her other witness, however, stated that the petitioner earned about six to seven thousand rupees per year. There does not appear to be any effective rebuttal of this evidence. I have a feeling that the learned Additional District Magistrate should not have reduced the maintenance to Rupees fifty per child but since he has given some reasons for this reduction I would not like to interfere in his discretion.

10. In view of the above findings the Revision Petition is dismissed but the amount of maintenance is reduced to Rupees fifty per month for each girl. It shall be payable from the date of the institution of the application under section 488 of the Criminal Procedure Code.

Order accordingly.

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