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Criminal Revision No. 1051 of 1964, decided on 27th February 1976.
S. 488‑Maintenance‑Jurisdiction of Court‑Residence of parties for purpose of S. 488‑Question of residence of a party‑Sole test whether a‑ party has animus mamendi or an intention to stay for an indefinite period at one place.‑[Maintenance‑Jurisdiction).
Mrs. Jolly v. Mr. Jolly A I R 1918 Cal. 785 ref.
‑
Marriage‑Maintenance of wife‑‑Duty of Muslim wife to perform her part of obligation, as ordained by Qur'an and Sunnah and then to claim maintenance if her husband still chooses to neglect her‑Wife refusing to live with her husband despite decree for restitution of conju gal rights‑Held, not entitled to maintenance‑Criminal Procedure Code (V of 1898), S. 488.
Said Badshah v. Mst. Sughran Bibi P L D 1967 pesh. 17 and Ma Hta v. Aye Maung A I R 1931 Rang. 111(1) ref.
‑‑ S. 488‑Maintenance‑Minor child in custody of mother‑Held, liable to be maintained by father.‑[ Muhammadan Law].
Lal Badshah v. Mst. Saeeda Begum etc. P L D 1960 Posh. 88 ; Ghulam Hussain v. Muhammad Aslant and another P L D 1961 Lab. 735 ; Mauhg San Pe v. Ma Lal Mai A I R 1932 Rang. 183 and Dinsab Kastmsab v. Muhammad Hussain Dinsab and another A I R 1945 Bom. 390 rel.
ORDER OF REFERENCE
The facts of the case are as follows :‑
By order dated 13‑4‑1964 Mr. Mohmood Afzal Khan, Magistrate lst Class, Lahore ordered Bahadur Khan, under section 488. Cr. P. C., to pay a monthly allowance of Rs. 50 to Mst. Bhag Bbari (Rs. 26 p, m. by way of maintenance for herself and Rs. 25 p.m. for maintenance of her minor daughter Mst. Zamir Akhtar). Bahadur Khan filed the present petition for revision of the said order dated 13-4‑64. He contended that the Court at Lahore had no jurisdiction to entertain the application for maintenance. He further urged that he had not neglected or refused to maintain the petitioner or the minor daughter, and pointed out that, as a matter of fact, Mst. Bhag Bhari had refused to live with him and he had to obtain a decree fur restitution of conjugal rights against her. Lastly, he urged that the amount of Rs. 50 p. m. ordered to be paid by way of maintenance was highly excessive.
2. The proceedings are forwarded for revision on the following grounds:
In the case the following points require determination, namely:‑
(a) Whether the Court exercising jurisdiction under section 488, Cr. P. C. at Lahore, had jurisdiction to entertain the petition filed by Mst. Bhag Bhari.
(b) Whether Bahadur Khan is proved to have neglected or refused to maintain his wife Mst. Bhag Bhari and a child Mst. Zamir Akhtar.
(c) Whether the direction to Bahadur Khan to pay Rs. 50 p.m. by way of maintenance is reasonable, if not, what amount should be a reasonable amount.
3. The parties were married in 1948 and lived in District Larkana. Bahadur Khan, originally i3 a resident of village Murid, Tehsil Chakwal, District Jhelum. After six months of the marriage, the parties returned, to Murid. In due course a daughter, Mst. Zamir Akhtar, was born to them ; she is at present 10 or 11 years old. Mst. Bhag Bhari alleged that in 1957 the couple came over to Lahore and started living in Garhi Shahu, Lahore ; and that sometime after Bahadur Khan left them at Lahore and failed to maintain them. It appears that subsequently litigation started between the couple. On 13‑11‑1959 Babadur Khan filed a suit against Mst. Bhag Bhari for restitution of conjugal rights in the civil Court at Chakwal, District Jhelum. During the pendency of the, suit, an 23‑11‑1959. ‑,'Gist. Bhag Bhar filed a suit in a civil Court at Lahore against Bahadur Khan for dissolution of their marriage. By judgment dated 28-4‑1960 the Lahore Court dismissed the suit. However, on appeal the learned Addl. District Judge held, on a review of evidence led in the case, that the parties did live in Lahore, with the result that a part of the cause of action had arisen at Lahore. The suit of Mst. Bhag Bhari was, however, stayed until the suit for restitution of the conjugal rights was decided. By judgment dated 9‑12‑1960 the civil Court at Chakwal passed an ex pane decree in favour of Bahadur Khan against Mst. Bbag Bbari for restitution of conjugal rights, together with the costs of the suit. Bahadur Khan realised the sum of Rs. 72 as costs but did not formally execute the decree under Order XXI, rule 32, C. P. C. On 19‑10‑1962 Mst. Bhag Bhari filed the petition under section 488, Cr. P. C. as stated above.
4. The fundamental question that falls for determination is whether in 1957 the couple had come to Lahore and had resided in Garhi Shahu under such circumstances that the residence could make the petition under sec tion 488, Cr. P. C. entertainable by the Court at Lahore. Mst. Bhag Bhari as P. W. 1 stated that Bahadur Khan and herself had come to seek employment and had begun to live with Fazal Elahi step‑father of Mst. Bhag Bhari. She added that Bahadur Khan had lived with them for 10 or 12 days and then had left, saying that he would bring his implements and that in the meantime arrangements be made for his employment. According to her, he never returned. Fazal Elahi, P. W. 2 supported her. Muhammad Iqbal P. W. 3 and Muhammad Hayat P. W. 4 supported them. Bahadur Khan denied that he bad ever brought Mst. Bhag Bhari to Lahore as alleged by her. Sultan Amir Shah, D. W. 1 and D. W. 2 simply stated that Bahadur Khan lived at Murid and that they did not know if he had come to Lahore. So far as direct evidence is concerned, the evidence adduced by Mat. Bhag Bhari positively establishes that the couple did come to Lahore to seek employment and did stay here rather permanently and that Babadur Khan went back after 10 or 12 days but did not return. The evidence of the D. Ws. is of a negative character and carries little weight. The matter was directly in issue between the parties in the civil suit filed by Mst. Bhag Bhari at Lahore. On appraisal of the evidence led it was held by the learned Additional District Judge, Lahore that the couple did reside at Lahore in 1957. That conclusion is binding on Bahadur Khan. The judgment is relevant in the trial of the petition under section 488, Cr. P. C. The learned trial Court, therefore, was justified in holding that the couple did live in Lahore in 1957 and that the Court had jurisdiction.
5. The learned counsel appearing on behalf of Babadur Khan relied on A I R 1940 Lah. 449 and A I R 1942 Mad. 665 and urged that the expression residence occurring in section 488, Cr. P. C. implies more than mere "stay". In the present case, the couple had not come to Lahore only for a casual visit ; they had come to Lahore to reside rather permanently as they had decided to seek employment here and earn their livelihood. The principle of the said rulings is not applicable.
6. The evidence led in the case would show that since 1957 the couple are living apart and are hotly litigating to enforce their rights. While Mst. Bhag Bhari complained that Bahadur Khan would not maintain her, she sought dissolution of the marriage. On the other hand, Bahadur Khan complained that while he himself was ready and willing to maintain her, Mst. Bhag Bhari would not live with him and perform marital obligations. The evidence that was believed by the learned Additional District Judge, Lahore led to. the conclusion that the couple had lived at Lahore and that Bahadur Khan had gone back and had not returned. Similar evidence had been led in the present petition. It eras the duty of the husband to provide maintenance to the wife. By his suit for enforcement of conjugal rights he expressed his willingness to maintain her provided she lived in his house and performed marital obligations. Nothing is known about the result of the suit for dissolution of marriage. Presumably, the marriage still continues. On the other hand, Babadur Khan has obtained a degree for restitution of conjugal rights in 1960 and the same is still enforceable. Bahadur Khan in his statement dated 16‑1‑64 before the Magistrate expressed his willingness to maintain Mst. Bhag Bhari. On the other hand, Mst. Bhag Bhari in her statement dated 16‑1‑64 refused to live with Bahadur Khan, stat ing that her life would be in danger. The above material does not establish any neglect or refusal on the part of Bahadur Khan to maintain his wife Mst. Bhag Bbari.
7. It follows that the trial Court was not justified in directing Babadur Khan to pay Rs. 25 per month by way of maintenance to Mst. Bhag Bhari.
8. Bahadur Khan as a father is duty bound to maintain his minor daughter. Mst. Bhag Bhari relied on P L D 1961 Lah. 33 and urged that the trial Court was justified in directing Babadur Khan to pay Rs. 25 by way of maintenance for the maintenance of the daughter. In my opinion the order to that extent is proper and valid.
9. Mst. Bhag Bhari contended that Bahadur Khan owned land and ran a hotel, with the result that he earned about Rs. 500 p. m. Bahadur Khan stated that he earned only Rs. 30 p. m. The daughter aged 11 years it to be maintained at Lahore. A maintenance allowance of Rs. 25 p. m. is just sufficient and is not at all excessive.
10. On the above findings, while the order directing Babadur Khan to pay Rs. 25 p. m. as maintenance of Mst. Zamir Akhter is valid, the order directing Bahadur Khan to pay Rs. 25 p. m. to Bhag Bhari for her own maintenance is invalid and requires to be revised. In pursuance of section 439, Cr. P. C. a recommendation should be made to the High Court of West Pakistan.
11. The file is submitted to the High Court of West Pakistan, Lahore with the request that the Judges may be pleased to revise the order dated 13‑4‑64 so that the direction to Bahadur Khan to pay Rs. 25 p. m. to Bhag Bhari for her maintenance is set aside, and that the order regarding the payment of maintenance in respect of Zamir Akhtar is maintained.
Malik Abdul Aziz for Petitioner.
Ch. Muhammad Anwar Khokhar for Respondent.
Dates of hearing : 23rd January and 2nd February 1976.
A reference has been made by Khan Muhammad Afzal Khan Additional Sessions Judge, I, Lahore under section 438, Cr. P. C. to this Court. with the recommendation to revise the order dated 13‑4‑1964, so that the direction to Babadur Khan to pay Rs. 25 p. m. to Bbag Bhari for her maintenance beset aside and that the order regarding the payment of maintenance in respect of Ust. Zamir Akhtar be maintained.
2. The facts of the case briefly are that Bahadur Khan's wife Mst. Bhag Bbari moved Magistrate Ist Class, Lahore under section 488, Cr. P. C. to order Bahadur Khan, petitioner, her husband to maintain her, as well as her minor daughter Mst. Zamir Akhtar. The learned Magistrate vide his order dated 13‑4‑1964 ordered Bahadur Khan to pay Rs. 50 in all to Mst. Bhag Bhari as her maintenance allowance and that of her minor daughter in equal shares. Although Bahadur Khan had resisted this applica tion by contending ‑that Mss. Bhag Bhari despite decree of restitution of conjugal rights passed against her, had refused to live with him and to perform conjugal obligation.
3. Bahadur Khan petitioner moved a revision petition before the Court of Additional Session Judge, I Lahore, by which he challenged the impugned order. The learned Additional sessions Judge formulated the following points for adjudication:‑
(a) Whether the Court exercising jurisdiction under section 488, Cr. P. C. at Lahore, had jurisdiction to entertain the petition filed by Mst. Bhag Bbari.
(b) Whether Bahadur Khan was proved to. have neglected or refused to maintain his wife Mst. Bhag Bhari and a child Mst. Zamir Akbtar.
(c) Whether the direction to Bahadur Khan to pay Rs. 50 p. m. by way of maintenance was reasonable, if not, what amount would be reasonable in this case."
4. The learned Additional Sessions Judge found issue No. 1 in favour of Mst. Bhag Bhari and held that Court in Lahore had the jurisdiction to hear the case under section 488, Cr. P. C., as the couple lived at Lahore in 1957. According to the learned Additional Sessions Judge the period of residence though short but any way it was sufficient to connote that the couple was resident of Lahore for the purpose of jurisdiction. As regards the second issue the learned Court held that as Mst. Bhag Bhari had failed to obey the decree of the Court against her to perform the conjugal rights, therefore she was not entitled to maintain by her husband. However it was observed by the learned Additional Sessions Judges that Bahadur Khan was duty bound to maintain his minor daughter and for that reason, he recommended that Bahadur Khan should be directed to pay Rs. 25 as maintenance for her minor daughter.
5. After the receipt of this reference notice was issued by this Court to respondent on 16‑11‑1964. This case was put up again on 23‑2‑1968 almost after four years and it was directed. that notice be issued to the parties and case should be fixed for 2‑ 3‑196'3. On 28‑5‑968 learned Judge of this Court found none present and directed that this matter be again fixed within three weeks, as it was an old case and needed speedy disposal. On 12‑7‑1968 it was again found that none had been served and then the matter went to cold storage and it was put up before me for the first time on 23‑1‑1976 after full 8 years. The arguments were fully beard and the case has been finalised today.
I have beard the learned counsel for both the parties and have perused the order of the Magistrate and contents of reference made by the learned Additional Sessions Judge.
7. It has been contended on behalf of Bahadur Khan petitioner that the order of the learned Magistrate was without jurisdiction and thus any structure based on that order will be nullity in the eye of law. Reliance in this matter was placed on Charan Das v. Mst. Surasti Bai A I R 1940 Lah. 449. It was submitted that according to the case of Bhag Bhari respondent herself, Bahadur Khan her husband only stayed in Lahore with her for 10 days and never came back, when he left the place telling her that be would be coming back after collecting his implements for doing some job as a labourer. In view of this admission on the part of Mst. Bhag Bhari, it was argued that this short sojourn of Bahadur Khan at Lahore, will not fall under the term residence, a pre‑requisite for conferring jurisdiction on the Court under section 4815, Cr. P. C.
8. On the other hand it has been submitted on behalf of Bhag Bhari that Bhadur Khan and Bhag Bhari came with all intents and purposes to settle permanently at Lahore and it was only after that Bhadur Khan deserted her and slipped away to Chakwal, where he bad contracted a second marriage and left his wife and his minor child to face the vicissitudes of life and perils of a strange environment. It has also been pointed out that Mst. Bhag Bhari filed a suit at Lahore for dissolution of marriage and it was held by the learned Additional Sessions Judge after recording the evidence that the couple did reside in Lahore and thus that judgment was binding on Bahadur Khan and he could not be allowed to wriggle out of this establish ed fact.
9. To meet the above situation it was submitted on behalf of Bahadur Khan that jurisdiction for the purposes of filing a civil suit for dissolution of marriage was different that the one under section 488, Cr. P. C. for claiming maintenance from the Courts of Criminal Jurisdiction.
10. I have given my anxious thought to all the contentions so raised by both the parties and feel convinced that Courts at Lahore bad Jurisdiction under section 488, Cr. P. C. to deal with the application of Mst. Bhag Bhari for her maintenance, as well as that of her minor child. The sole test on the question of residence is whether a party has animus memendi or an A intention to stay for an indefinite period at one place; and if be had such intention, then alone he can be said to reside there for the purpose of sec tion 488, Cr. P. C. In case of Mrs. Jolly v. Mr. Jolly A I R 1918 Cal. 785 a Bench of Calcutta High Court held in an application by Mrs. Jolly agains the husband under section 488, Cr. P. C. that:
"the residence of the husband in Calcutta from 16th to the 23rd January, when the application under section 488, Cr. P. C. was made, was suffi cient to give the Presiding Magistrate Court in Calcutta jurisdiction having regard to subsection (8) of section 488, Cr. P. C."
In view of the above I am in full agreement with the view of the learned O Additional Sessions Judge that point of jurisdiction was rightly stood resolved in favour of Mat. Bhag Bhari. I see no force in the argument of the learned counsel for Bhadur Khan in this respect and I reject it as without substance.
11. As regards the failure of Mst. Bhag Bhari to refuse to live with Bahadur Khan petitioner despite the decree for restitution of conjugal rights I am o the considered opinion that she was not entitled to maintenance on this ground. It is duty of a Muslim wife to perform her part of the obligation, so ordained by Qur'an and Sunnah and then to claim maintenance if her husband still chooses to neglect her. It was held in Said Badshah v. Mst. Sughran Bibi P L D 1967 Pesh. 17 that husband could refuse to maintain his wife when she refused to live with him. Similarly it was held in Mahta v. Aye Maung A I R 1931 Rang. 111 (1) that in case, wife refused to live with her husband and still claimed the maintenance, a decree for restitution of conjugal rights in favour of the husband was always a good defence to application for maintenance. In view of the law laid down I am in full accord with the learned Additional Sessions Judge that order directing Bahadur Khan petitioner by the learned Magistrate to pay Rs. 25 as maintenance to Mst. Bhag Bhari was improper and illegal. I accept the recommendation of the learned referring Judge and set aside this order to this extent.
As regards the subject of allowing maintenance to minor child of Mst. Bhag Bhari born out of the wedlock with Bahadur Khan, I am of the firm view that learned trial Court was fully justified, as well as competent to direct Bahadur Khan petitioner to maintain his minor child. As it is settled law that minor even in custody of mother is liable to be maintained by his father. Reliance is placed on Lal Badshah v. Mst. Saeeda Begum etc. P L D 1960 Pesh. 88, Ghulam Hussain v. Muhammad Aslam and another P L D 1961 Lah. 735, Maung San Pe v. Ma Lai Mai A I R 1932 Rang. 183 and Dinsab Kasimrab v. Muhammad Hussain Dinsab and another A I R 1945 Bom. 390.
13. In view of the above analysis of the entire case. I accept the reference made by the learned Additional Sessions Judge in entirety and set aside the order of the trial Magistrate dated 13‑4‑1964 qua allowing maintenance to Mst. Bhag Bhari and maintain the same vis‑a‑vis the maintenance of Rs. 25 allowed in favour of Mst. Zamir Akhtar minor child of Mst. Bhag Bhari.
S. Q. Reference accepted.
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