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Writ Petition No 143 of 1986/BWP, decided on 2nd July, 1986.

‑‑S. 5‑‑Maintenance of children‑‑Father responsible to maintain his child so long as latter unable to maintain himself.

Mst. Ghulam Fatima v. Sheikh Muhammad Bashir P L D 1958 Lah. 596 rel.

Kachi Muhaidin Tharaganar v. Sainambu Ammal and others AIR 1941 Mad. 582 and

Muhammad Afsar v. Mst. Munawar Jan P L D 1961 Lah. 199 rel.

‑‑‑S . 5‑‑Maintenance of children‑‑Responsibility of father‑‑Where child was staying away from father contrary to his legal right of his custody, no liability, held, existed in father to pay maintenance for such a child.

Mst. Hamida Begum v. Syed Mashaf Hussain Shah P L D 1958 SC 284 and Dinsab Kasimsab v . Muhammad Hussen Dinsab and another AIR 1945 Bom. 390 rel.

‑‑‑S. 5‑‑Maintenance‑‑Child of petitioner (father) a female of barely five years of age and ex facie petitioner having no right of her custody‑‑Petitioner, held, liable to pay maintenance for his daughter.

M. Akbar for Petitioner.

Petitioner married Mst. Safura Khanum on 29‑9‑1978 and a daughter Mst. Sunbal alias Momi was born during the converture. After sometime, their relations got strained and Mst. Safura Khanum filed three cases against the petitioner respectively for dissolution of her marriage, recovery of dower of Rs.20,000 and maintenance for herself and also for her daughter. Petitioner, on his part, brought a suit for restitution of conjugal rights. Upon contest being entered thereto, all the four suits were consolidated and necessary issues were settled. After recording the evidence desired to be led by the parties, learned Family Judge, Ahmadpur East decreed the suit for dissolution of marriage on the ground of Khula, fixing Rs.5,000 as the consideration therefore, and petitioner's suit for restitution of conjugal rights was consequently dismissed. The suit for recovery of dower was also dismissed with the finding that the dower‑money has been paid by the petitioner at different times in the Bank Account of the lady who has also been operating it. As regards the claim for maintenance, learned trial Judge found that whereas Mst. Safura Khanum was not entitled to be granted any maintenance for the reason of her living away from the petitioner the daughter Mst. Sunbil alias Momi was entitled to maintenance at the rate of Rs.300 per month from 4‑1‑1983 (the date of institution of her claim) till she attains the age of majority.

2. Petitioner preferred an appeal against the order of maintenance by impleading his daughter Mst. Sunbal as the only respondent thereto. Therein, only the rate of maintenance appears to have been disputed. Learned District Judge has dismissed the appeal with the observation that the rate of maintenance granted by the Family Court is not excessive. He has now filed this writ petition.

3.‑. Learned counsel contended that since Mst. Safura Khanum, the mother of the minor, is in effluent circumstances and is in Government service, drawing a monthly salary of Rs.2,200, therefore, there was no need for the petitioner being burdened with the liability to pay any maintenance for the child who is in fact being maintained by her from her own sources. In this context, he placed reliance on Mst. Ghulam Fatima v. Sheikh Muhammad Bashir P L D 1958 Lah. 596 and contended that since the child was being maintained by another, therefore, the father stood absolved of his responsibility to maintain it. This argument is too preposterous to be accepted and is based on a singular misreading of the aforesaid judgment which actually relates to a claim for recovery of past maintenance brought by the mother of a child and it was in the context of considering such claim that the said observation was made. Otherwise, it is clear that a father has an undeniable duty to maintain his child. In Kachi Muhaidin Tharaganar v. Sainambu Ammal and others A I R 1941 Mad. 582 it was held:‑

"The Prophet of Islam (p.b.u.h.) declared the maintenance of children to be obligatory on the father and as long as he is in a position to do so and the children have no independent means of their own it remains his duty to provide for them."

The proposition propounded for the petitioner has never been countenanced either in the claims for maintenance brought in civil Courts or even in the claims lodged under section 488 of the Cr.P.C. where under decided cases have gone to the extent even of holding that, for its e purposes, a child remains a child, irrespective of his age, and father has to maintain him so long as he is unable to maintain himself. Reference may be made to Muhammad Afsar v. Mst. Munawar Jan P L D 1961, Lah. 199 wherein view to this effect has been expressed in the context of determining 'neglect or failure of the father to maintain his child' as per the requirement of that section. In Mst. Hamida Begum v. Syed Mashaf Hussain Shah P L D 1958 S C 284, . after bringing under consideration the father's prima facie right of guardianship of his minor child, their Lordships observed:‑

" ....we do not see any insuperable objection to that fact receiving due consideration in the context of the alleged refusal or neglect of the father to maintain the child in the absence of any express provision to the contrary in section 488 of the Code or at least a necessary intendment to that effect, arising as an inescapable conclusion from the language of that section. The obligation imposed by that section on the father intrinsically contains an implication that the custody of the child should be with him unless the general law varies that position and enables the child to live with some one else. In the latter case the father would be under a duty to pay the maintenance allowance for the child to the individual entitled to its custody but not in the absence of an order of a competent Court or a rule of the general law to that effect." and concluded in that case that the father was entitled to defeat the application for maintenance on the ground that the child should be allowed to live with him as a condition of his maintenance by him. Thus, the difference between claims for maintenance brought under section 488, Cr.P.C. and those brought in civil Courts, as considered by a Division Bench of the Bombay High Court in Dinsab Kasimsab v . Muhammad Hussen Dinsab and another A I R 1945 Bom. 390, seems to have disappeared and now the claim for maintenance of a child has to be considered in juxtaposition with the father's right of his custody or guardianship. Hence, it can be only where a child is staying away from the father contrary to his legal right of its custody, that it can be urged that there is no liability in him to pay maintenance for such B a child who is staying away from him against his wishes and contrary to his right of custody and guardianship but, otherwise, father's duty to maintain his children is absolute.

4. It is in the above context that I had provided an opportunity to the learned ‑counsel on 24‑6‑1986 to find out the result of litigation launched by the petitioner under the Guardian and Wards Act for custody of the minor daughter. Today, learned counsel has informed me that petitioner's appeal, against a decision adverse to him made by the Family Court in that behalf, has also been rejected. Since the child in this case is a female of a barely 5 years age, therefore, ex facie the petitioner does not have a right of custody and he has been C rightly adjudged liable to pay maintenance for his daughter at the rate of Rs.300 p.m. which is only a meagre amount and cannot, by any standard, be termed as excessive in present days to call for reduction.'

5. There is no case made out for interference in exercise of constitutional jurisdiction. Hence, dismissed in limine.

M. Y. H. Petition dismissed.

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