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Criminal Appeal No. 8‑P of 1969, decided on 14th Novem ber 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the. 8th December 1967, in Criminal Revision No. 140 of 1966).
Ss. 5 & 20 and Criminal Procedure Code (V of 1898), Ss. 488 & 435 ---Maintenance‑--Order of Magistrate under S. 488, Cr. P. C. and appeal against that order disposed of prior to date of application of West Pakistan Family Courts Act, 1964‑---Mere fact that revision pending in High Court, when Act made applicable, would riot render order of maintenance passed by Magistrate as one without jurisdic tion‑----Revision, like appeal, not continuation of original proceeding.
Where an order of maintenance under section 488, Cr. P. C. was made and appeal against that order disposed of prior 'to the date the West Pakistan Family Courts Act, 1964, was made applicable to a particular area, the mere fact that pending revision against that order in the High Court the Act had been made applicable in that area, would not make the order of the Magistrate under section 488, Cr. P. C. as one without jurisdiction. A revision is not like an appeal a continuation of the original proceeding.
Adrian Afzal v. Captain Sher Afzal P L D 1969 S C 187 dis tinguished.
S. 488‑--Mainte nance‑--Word "child" in S. 488 must be one "unable to maintain itself "Whether child in position to maintain itself---‑Depends on status and circumstances of each family‑---Word "maintenance"---- Includes education but not education at higher level ad infinitum.
Section 488, Cr. P. C. creates a statutory liability, indepen dent from the personal law liability, for the maintenance of one's wife and children, both legitimate and illegitimate, who are unable to maintain themselves. The word "child" has not been defined in the Code but this does not mean that it can be construed without any regard for its ordinary or natural meaning or in such a way as to produce an absurdity. Though the word "child" in its widest sense may mean any son or daughter or any progeny yet, it cannot extend to embrace within its fold a person of 40 or 50 just because his parents are alive. In most cases, however, no difficulty will arise, for, the condition that section 488, Cr. P. C. imposes is that the child must be "unable to maintain itself". Normally a child, after attaining majority, would be physically in a position to maintain itself, for, it would then be capable of earning some kind of livelihood. But this again is a question which will depend upon the status and circumstances of each individual family. Thus, although the section does not make any reference to the age of majority, it is a consideration which must inevitably be taken into account by the Court when deciding the question as to whether the child is or is not able to maintain itself. Thus an infirm or decrepit or deformed son or daughter may be entitled to claim maintenance even up to a very advanced age, while an able‑bodied son or daughter might be deprived of the right if he/she has already found suit able gainful employment and is in a position to maintain himself or herself. Again in interpreting the word "maintenance" some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing and lodging, it cannot, by any stretch of imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary‑to decide in this con nection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as cooly or by thieving. What is required is that the child must be maintained until it is in a position to earn its own livelihood in an honest and decent manner in keeping with its family status.
Peer Bakhsh Khan, Advocate Supreme Court instructed by Muhammad Tariq Khan, Attorney for Appellant.
Nemo for Respondent.
Date of hearing: 14th November 1969.
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