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Regular Second Appeal No. 243 of 1955, decided on 14th April 1958, from the decree of the Court of Khan Bashir‑ud‑Din Ahmad, District Judge, Rawalpindi, dated the 19th February 1955.
(a) Civil Procedure Code (V of 1908), S. 100‑Finding of fact based on misreading of evidence by lower Appellate Court should beset aside.
(b) Muhammadan Law‑Maintenance of minor children Father is bound to maintain indigent child himself, but not through a third person unless .so directed by Court.
(c) Muhammadan Law‑Maintenance‑Father's liability to maintain minor children, stated.
A father's liability to maintain his children, excepting of course those who have not been weaned, extends only to such of them as are really in need of maintenance.
A child having means of its own is by common consent not entitled to any maintenance from his father. It follows from these premises 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 children of another voluntarily without reference to its father would not be entitled to claim its maintenance from the father.
(d) Muhammadan Law‑Maintenance‑Husband is bound to maintain his wife regardless of her own financial position.
(e) Muhammadan Law‑Maintenance‑Past maintenance can not be claimed from father unless maintenance previously fixed by Court.
Neither the child nor the person who maintains it can claim past maintenance from the father unless the same has been previously fixed either by a decree of the Court or by the father himself.
Kachi Muhaidia Tharaganar v. Sainambu Ammal and others A I R 1941 Mad. 582 and Dinsab Kasimsab v. Muhammad Hussen Dinsab and another A I R 1945 Born. 390 ref.
Fazle Ghani Khan for Appellant.
Mazhar Ali Azhar for Respondent.
Dates of hearing : 10th, 21st and 28th March 1958.
‑The facts which have given rise to this appeal are as follows : The plaintiff‑appellant, Ghulam Fatima, was married to the defendant‑respondent, Sheikh Muhammad Bashir, from whom she has a minor daughter, by name Mst. Nasim Akhtar who was born in 1940. Muhammad Bashir divorced Mst. Ghulam Fatima some time in 1946, and took to himself another wife. Nasim Akhtar who was about six years of age at the time of the divorce continued to live with her mother until the 28th of May 1953. It is admitted that the father never gave maintenance to the mother ; and that none was ever claimed from him. Mst. Ghulam Fatima contracted a second marriage in May 1950, with one Kamal Afsar who is not related to her within the prohibited degree. Muhammad Bashir made an appli cation to the Senior Civil Judge, Sargodha, on the 11th of October 1950, for the custody of the minor. Mst. Ghulam Fatima applied to the Senior Civil Judge, Rawalpindi, on the 11th of May 1951, for her appointment as guardian of the minor. The first appli cation was transferred by this Court from the file of the Senior Civil Judge, Sargodha, to the Senior Civil Judge, Rawalpindi, in order to enable the latter to dispose of both the petitions together. By his order, dated the 19th of July 1952, the learned Senior Civil Judge held that it was in the interests of the minor that she should live with her mother until the age of thirteen. He, therefore, ordered that Mst. Ghulam Fatima was to retain the custody of the minor until the 20th of November 1953, and thereafter the minor was to be handed over to her father, Muhammad Bashir.
Muhammad Bashir appealed to this Court against the order of the Senior Civil Judge, Rawalpindi. The appeal was accepted to this extent only that the minor was ordered to be restored to her father from the 1st of April 1953, instead of the 20th of November 1953. That order was mainly based upon two con siderations: Firstly, because the minor was studying in a school and it was considered proper that she should go to her father at Sargodha not in the middle of a school year but when the current year ended on the 1st of April 1953; and secondly, because the father undertook in this Court to deposit Rs. 10,000 in the name of the minor to meet the expenses of her marriage. The question whether it would have been in the interests of the minor to be sent to her father's home in the absence of the latter's offer to deposit Rs. 10,000 in the name of the minor was not decided nor was the finding of the lover Court that it was in the interests of the minor to remain with her mother until the age of thirteen set aside, expressly or impliedly.
It might be mentioned at this stage that the defendant respondent alleged that he had approached Mst. Ghulam Fatima soon after her remarriage for the custody of his minor daughter. He examined D. W. I Sardar and D. W. 2 Sh. Muhammad Bashir to prove this allegation. The defendant‑respondent's second wife is the sister of the brother‑in‑law of D. W. 2. D. W. I admits that the plaintiff observed pardah from him and there is absolutely no reason as to why he should have been sent to her by the respon dent to ask for the custody of the minor. In cross‑examination, he admitted that the defendant was in the habit of seeing him every day for three months prior to the day on which he alleges to have gone to the plaintiff. The statements of both the witnesses apart from the contradictions between them, are, on the face of them absurdly untrue. Learned lower appellate Court ha /'s gravely misread them. I, therefore, set aside its finding on this) question and, agreeing with the learned trial Judge hold that the contention that he asked for the return of his daughter before filing the application for her custody in the Court of the Senior Civil Judge. Sargodha, remains entirely unproved.
The respondent did not take over the custody of the minor on the 1st of April 1953, in accordance with the order of this Court; but later, on the 13th of ‑May 1953. The plaintiff instituted the present suit for recovery of Rs. 900 as the amount spent by her on the maintenance of the minor for three years next preceding the institution of the suit. 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. Learned District Judge, disagreeing with the trial Court, dismissed the suit with costs 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.
On behalf of the plaintiff‑appellant great reliance was placed upon ruling of the learned Single Judge of the Madras High Court in Kachi Muhaidia Tharaganar v. Sainambu Ammal and others (A I R 1941 Mad. 582), wherein Abdul Rahman, J. remarked : " * * * * * the rules of maintenance, so far as the children are concerned, have got really nothing to do with the father's right of custody. If the father has any right of custody of his children, he is entitled to enforce that right but the fact that he has not done so or that his children are residing elsewhere does not, in my opinion, deprive them of their right to claim or recover maintenance from their father." The learned lower Appellate Court, on the other hand, has based its decision upon a ruling of the Bombay High Court in Dinsah Kasimsab v. Muhammad Hussen Dinsab and another (A I R 1945 Born. 390), where a Division Bench of that Court remarked : "The mainte nance, which the father, whether a Hindu or a Muhammadan, is under an absolute obligation to provide for his minor sons and unmarried daughters, does not necessarily mean a separate allowance in cash or kind, as appears to have been assumed by Abdur Rahman, J., in I L R 1941 Mad. 760"; and the following opinion of Justice Kania in 43 Bom. L R 823 was preferred :‑
"In my opinion the Muhammadan Law, like other systems of law, while putting an obligation on the father to maintain his children, gives with it a right to the father to keep the children in his house, unless according to the law governing the parties some other person is the lawful guardian of the person of the child."
A reference to the original text books on Hanfi Law would show that the proposition laid down by Kania, J. is in accordance with that law. 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 note through another unless so directed by the Kazi or the Court.
A father's liability to maintain his children, excepting of course those who have not been weaned; extends only to such of them as are really in need of maintenance. It is in the case of a wife alone that her right to maintenance is recognized regardless of her own financial position. A child having means of its own is by common consent not entitled to any maintenance from his father. It follows from these premises that a child, who is being I 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.
It also seems clear from the authorities on Hanfi Law that neither the child nor the person who maintains it can claim past, maintenance from the father unless the same has been previously " fixed either by a decree of the Court or by the father himself. This proposition seems to flow from the propositions mentioned in the preceding paragraph and is supported by the exposition of the law relating to maintenance in the text books. The Hedaya (Hamilton's Second Edition, page 149) states :‑
"Arrear not due in a decreed maintenance.‑If the Kazee decrees a maintenance to children; or to parents, or to relations within the prohibited degree, and some time should elapse without their receiving any, their right , to main tenance ceases, because it is due only so far as may suffice, according to their necessity (whence it is not so to those who are opulent), and they being able to suffer a considerable portion of time to pass without demanding or receiving it, it is evident that they have a sufficiency, and are under no necessity of seeking a maintenance from others : contrary to where the Kazee decrees a maintenance to a wife, and a space of time elapses without her receiving any, for her right to maintenance does not cease on account of her independence, because it is her due, whether she be rich or poor".
" Unless where it is decreed to be provided upon the absentee's credit.‑What has been observed on this occasion applies to cases only in which the Kazee has not authorized the parties to provide themselves a maintenance upon the absentee's credit but where he has so authorized them, their right to maintenance does not cease in consequence of a length of time passing without their receiving any, because the authority of the Kazee is universal, and hence his order to provide a maintenance upon credit is equal to that of the absentee himself, wherefore the proportion of maintenance for the time so elapsed is a debt upon the absentee, and does not cease from that circumstance.‑The time here meant is any term beyond a month ; and if the time elapsed be short of that term, main tenance does not cease."
These passages clearly lay down that even decreed maintenance, if allowed to remain in arrears for some time, cannot be recovered from a non‑absentee father, on the grounds that maintenance is due only when the claimant, other than a wife, is in actual need of it and the fact that it has not claimed indicates that it was not needed. In the Urdu translation of Durral Mukhtar by Maulvi Khurram Ali (Naval Kishore Press), it is laid down that should there be any dispute between the mother and the father regarding the maintenance of a child the Kazee should fix the amount on maintenance and order the father to pay to the mother until the: latter is found guilty of misappropriation. It is further stated , that if the father is poor and the mother well off then the latter will be ordered to maintain the child and recover the amount from the father as a debt when he is able to pay it (page 273).1 At page 460 of Baillie's Muslim Law (Third Impression, 1957, Premier Book House, Lahore) it is stated : " * * * * * when the father is able, but refuses, and the Judge has decreed the maintenance of a child against him, or when, after the decree against him, he abandons the child without having the means of subsistence, and the mother incurs debt under the direction of the K Judge, she may have recourse to her husband for it " * * * * *" An examination of the authorities leaves no room for doubt that past maintenance‑except, perhaps, for a very short period cannot be recovered from the father by the mother who hasp maintained a child unless it has become due under either the decree of the Kazee or agreement by the father. In view of this state of the Hanfi Law the plaintiff‑appellant is not at all entitled y to a decree because she had not previously asked a Court to pass a decree for maintenance against the defendant‑respondent and the latter himself had not agreed to pay any.
Even if the plaintiff were entitled to recover undecreed 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 after 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.
In the judgment of this Court in Muhammad Bashir v. Mst. Ghulam Fatima (P L D 1953 Lah. 73 at. p. 82), it was said :‑
"The mother gets only about Rs. 60 as pay and this income would be hardly sufficient to meet the expenses of both if the girl is to be properly educated".
It was also urged on her behalf that the father had taken no interest in the child and had not paid any maintenance and to this the Court remarked:" * * * * * * but none was asked for. Be that as .it may the circumstances of the case leave no room for doubt that the plaintiff‑appellant had, until she lost her case for the custody of the minor in this Court no intention of claiming the, maintenance of her daughter from the defendant respondent.
For the foregoing reasons, the present appeal must fail except as regards costs. In the particular circumstances of the case, the parties are ordered to bear their own costs in this Court as well as in the Courts below.
K. M. A. Appeal dismissed.
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