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Criminal Appeal No.28/Mpr of 1987, decided on 11th January, 1989
(On appeal from the judgment and order of the High Court dated 25 2 1987 in Criminal Revision No.1 of 1987).
S. 488 Maintenance of child by father Conditions Exercise of jurisdiction under S.488, Cr.P.C. Scope Evaluation of evidence Principles.
Under section 488, Cr.P.C. the Magistrate is empowered to award monthly allowance for the maintenance of the child or the children, as the case may be, on the satisfaction that the father, having sufficient means, neglected to maintain children who were unable to maintain themselves. The requisite conditions, therefore, are:
(i) that the child must be unable to maintain itself;
(ii) that the father neglects or refuses to maintain the child; and
(iii) that the father having sufficient means neglects to maintain his child.
It would, thus appear that the foundation in the exercise of jurisdiction under section 488, Criminal Procedure Code, 1898, rests on the finding that the person concerned having sufficient means has neglected or refused to maintain his child unable to maintain itself. Obviously, it would be a question of fact to be determined on the circumstances and evidence in each case as to whether neglect or refusal to maintain the child has been made out or not; and it would not matter as to who produces the evidence to support his case. The evidence as a whole, irrespective of the fact as to who brings it on record, is to be evaluated.
Maintenance of child by father is obligatory Father is required to explain satisfactorily as to in what way he can avoid maintenance allowances to the child.
Under Muhammadan Law a father ordinarily is bound to maintain the child if it remains with his mother especially when the custody, in consideration of the age, under the personal law also remains with the mother. In such cases neglect or refusal to maintain the child is to be attributed to the father and the father is required to explain away satisfactorily as to in what way he can avoid maintenance allowance to the child.
Custody of child Female child under nine years of age Mother is entitled to custody.
S. 488 Custody of children not a matter to be decided by the Magistrate Powers of Magistrate stated.
The question whether the father, under some circumstances, is or was entitled to the custody of the children is the job of the Civil Court. A Magistrate has no jurisdiction in a proceeding under section 488 of the Code to determine as to who is entitled to the custody of a child. If the father claims to have custody of the child made over to him the proper course for the father is to apply to the Civil Court for an order declaring him its guardian and directing the" child to be handed over to him.
The object of section 488, no doubt, is to avoid vagrancy by providing that a Magistrate may up to a limited extent see that a wife and children are maintained by a husband or father able to maintain them, the Magistrate must take the facts as he finds them to be. If in fact the children are living with the wife, and if in fact the father is refusing or neglecting to maintain them where they are living, the Magistrate has jurisdiction to make an order. If the fathers case is that the children ought not to be living with the wife, but ought to be living with him or under his direction, then he must take proper proceedings in a Civil Court to get the children removed from the custody of the mother. No doubt, such proceedings may sometimes involve expense, which a father is unable or unwilling to bear, but that cannot deprive the Magistrate of the right to exercise his powers under section 488. If the Civil Court makes an order under which the children cease to reside with the mother, and if the father is then willing to provide for their maintenance, he can, of course, apply to the Magistrate under section 489 to modify his previous order.
David Sassoon v. Emperor AIR 1925 Bom. 259 and Ebrahim Mahomed Mukri v. Khurshedbai Mukri A I R 1941 Bom.267 ref.
S. 488 Maintenance of child Order of maintenance of child in the future by Magistrate is not sufficient to debar the Magistrate from making an order under S.488 (1), Cr.P.C. Magistrate would be entitled to consider the circumstances in which the offer was made and whether it was right and proper that the child, if not in the, custody of father, should be handed over to him.
S. 488 Maintenance of child When the custody of a child happens to be with the mother albeit a divorced wife, there is absolute liability of father to support the child irrespective of any other consideration.
Mst. Mehtab Bibi v. Allah Bakhsh 17 P R Cr. 1885; David Sassoon v. Emperor AIR 1925 Bom. 259; Maung San PE v. Ma Lai Mai AIR 1932 Rang. 183; Ma Shwe Kyin v. Maung San Myein AIR 1937 Rang 205; Ebrahim Mahomed Mukri v. Khurahedbai Ebrahim Mukri AIR 1941 Bom. 267 and Kuppala Krishtappa v. Premaleelamani AIR 1942 Mad. 705 ref.
S. 488 Maintenance of child in custody of mother, who was also entitled to have the custody of it under the personal law Principles.
A child in the custody of the mother, who is also entitled to have the custody of it under the personal law, is to be maintained by the father and it cannot be a valid defence chat the child would be maintained in the event the mother allows him to reside with the father and the child comes to reside with him. No doubt, the right of custody is the exclusive function of Civil Court to determine, nevertheless the question of right of custody of the child is an important fact which is always considered in such like cases. It is difficult to accept that the question of right to custody of the child is not at all germane to section 488 of the Criminal Procedure Code. It may very well have vital bearing on the question whether a father has, in fact, neglected or refused maintain the child or not. The provisions of section 488 of the Criminal Procedure Code, are not intended to shut out, entirely all references to the personal law by the parties except in respect of which a clear departure has been made from, that law in the section itself.
If the rule of law gives to a Muhammadan mother a right of guardianship of her minor children, there is no valid objection on the part of the father to maintain the child, in 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.
Hamida Begum v. Mashaf Hussain Shah PLD 1958 SC 284 ref.
S. 488 Maintenance of child Right of custody of child with mother Simple application, without evidence, by the mother, held, was sufficient to require father to give maintenance allowance to e child and it was the father who was required to show that circumstances were such that he could not be asked to pay maintenance allowance to child Where father failed to bring on record any such circumstances to disentitle the child to have maintenance allowance for him, father was duty bound to pay the maintenance allowance.
S 488 Maintenance of child When a child lives with a person who is entitled to have its custody, father is under a duty to pay maintenance allowance for the child to the person entitled to its custody.
S 488 "Child" Meaning Section 488 not confined to those children only who are under the age of majority Child must be maintained unless he is in a position to earn its own livelihood in an honest and decent manner in keeping with its family status. [Words and phrases].
"Child" under section 488, Cr.P.C. means a minor unable to maintain itself. Section 488 creates a statutory liability, independent 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 natural meaning or in such a way as to produce an absurdity. Though the word "child" in its wider 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 years of age just because his parents are alive. In most cases, however, no difficulty will arise, in view of the condition the section 488 imposes; that the child must be unable to maintain itself. Normally a child, after attaining majority, would be physically in a position to maintain itself and it would be said that the child is capable to earn some kind of livelihood. But this again is a question, which will depend upon the status and circumstances of each individual family. Thus, although this 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.
Reference to age in section 488, Criminal Procedure Code, it appears, is purposely omitted; the object being that any son or daughter is entitled to maintenance so long as he or she is unable to maintain himself, or herself.
Word "child" for the purpose of maintenance even includes a "child" who has attained puberty or majority but unable to maintain itself. What is required is that the child must be maintained unless he is in a position to earn its own livelihood in an honest and decent manner in keeping with its family status.
The age is of secondary importance. What is 4mportant is that a person should be unable to maintain himself irrespective of his age. There is no qualification of age. The only qualification is that the child must be unable to maintain itself, section 488 is, therefore, not confined to those children only who are under the age of majority.
Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75; Sm. Purnasashi Devi v. Nagendra Nath Battacharjye AIR 1950 Cal. 465 and Muhammad Yar v. Ali Muhammad AIR 1941 Lah. 92 ref.
S 488(6) Recording of evidence Dispensation of personal appearance Procedure Dispensation how can be made Non--dispensation of appearance and wilful evoidance to appear Effect.
Under subsection (6) of section 488 of the Criminal Procedure Code, 1898 all evidence shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader.
The evidence under Chapter XXXVI, Cr.P.C. is necessarily to be taken in the presence of the husband or the father, as the case may be, unless his personal attendance is dispensed with and he is allowed to conduct the case by his pleader. This would clearly show that if a person is not represented by a pleader and he absents himself; evidence under the Chapter against him would only be recorded if he is proceeded ex parte for his wilfully avoiding the service or wilfully neglecting to attend the Court. If this procedure is not adopted the entire proceedings would vitiate. The Court, however, may at times deem it proper to dispense with the personal appearance of the husband or the father, as the case may be, and allow the evidence to be recorded in presence of his pleader.
The inquiry, it is desirable, should be conducted in presence of the person proceeded against and the proceedings under this section should be avoided to be conducted ex parte unless of course the Court is satisfied that the defendant is wilfully avoiding the service of summons or is neglecting to attend the Court. However, if his personal attendance is dispensed with, evidence can be taken in his absence in presence of his counsel.
The proceedings can be conducted in presence of the pleader when the personal attendance has been dispensed with. Dispensation can be made by an express order or by implication. It is of significance to note that where the attendance has not been dispensed with and the husband or the father is also not wilfully avoiding the service, the Court is justified in refusing to proceed with the case and insist upon the presence of the defendant. In such cases, the Court ought not ordinarily proceed ex parte. This clearly conveys the impression that if the Court declines to proceed ex parte and also records evidence in presence of the counsel for the defendant, it impliedly dispenses with the personal attendance of the person proceeded, against.
S, 488(6) Dispensation of attendance Recording of evidence by Magistrate in absence of appellant and counsel of appellant also failed to raise any objection to such recording of evidence Held, this would impliedly convey in clear sense that the personal attendance of the appellant was dispensed with by the Magistrate.
S. 488 Maintenance of child Child in custody of legal and natural guardian, the mother Refusal of father to maintain child Held, nothing more was required in proof of refusal or neglect to pay maintenance allowance to the children on the part of the father when he stated before Court that he failed and neglected to provide maintenance allowance to child.
S. 488(6) Dispensation of personal appearance Word "shall" is used in a mandatory way Dispensation of the personal attendance of the father or the husband, as the case may be, can be made by an order express or implied.
S. 488 Maintenance of child Father is obliged to maintain his child when the child remains in the custody of a person when such person is ordinarily entitled to retain its custody under his personal law Father cannot raise a valid plea that he would maintain such child, if custody of child is reverted to him.
S. 488 Maintenance of child by child-----Father being an ablebodied person of 32 years of age will be presumed to be capable to provide the amount of allowance to his children.
Ch. Muhammad Riaz Akhtar, Advocate" for Appellant.
Ch. Liaqat Ali Khan, Advocate for Respondents.
. -- This appeal, by leave, originated from the proceedings taken by Mst. Maqsooda Begum against her former husband, Zafar lqbal, appellant herein, under section 488, Criminal Procedure Code arises in the following way:
Mst. Maqsooda Begum filed an application under section 488, Criminal Procedure Code seeking maintenance for herself and for her two minor daughters, Safina Bi and Nageena Bi. The trial Magistrate allowed Rs.200 per month as maintenance allowance to each of the minors but dismissed the prayer of maintenance allowance to Mst. Maqsooda Begum, respondent No. 1 herein, vide order-dated 27 3 1986. Mst. Maqsooda Begum was refused maintenance allowance as in the opinion of the learned Magistrate, she was already divorced by her husband. A revision petition before the High Court, moved by the appellant was also dismissed vide judgment-dated 25 2 1987. Hence this appeal, by leave, to assail the said judgment of the High Court.
2. Lengthy arguments by the learned counsel for the parties were addressed at the Bar.
It has been contended by the learned counsel for the appellant:
(i) that the High Court has erroneously held that the compliance of subsection (6) of section 488, Criminal Procedure Code is merely directory in nature and the evidence recorded in absence of the father the appellant can legally be considered. According to the learned counsel the evidence recorded in the absence of the husband or the father, as stipulated under the provisions of subsection (6) of section 488, Criminal Procedure Code, cannot be considered and this omission vitiates the whole proceedings, but the learned Judge in the High Court erroneously held otherwise. In the context, the learned counsel has submitted that the word "shall" used in subsection (6) of section 488, Criminal Procedure Code is mandatory in nature and in the absence of an express order dispensing with the presence of the husband or father, the evidence taken cannot be considered;
(ii) that the learned Chief Justice of the High Court was also wrong while holding that even in the absence of express order, in the circumstances of the case, it would be presumed that the presence of the appellant, the father of the children, was dispensed with by the Court; and
(iii) on merits, the learned counsel argued that in the circumstances of the case the children were not entitled to any maintenance allowance as Mst. Maqsooda Begum, the mother of the children, was not prepared to part with their custody so as to enable them to live with their father, the appellant, who is and was prepared to maintain them, if they leave the mother and reside with him.
3. The learned counsel for the respondents repudiated the arguments advanced by the learned counsel for the appellant and supported the judgment of the High Court on the grounds, the High Court based its findings.
4. It is of importance to state here that the parties are in agreement that the respondent, Mst. Maqsooda Begum, the mother of the infants, under Muhammadan Law is entitled to the custody of the children. This aspect, as would be presently seen, has vital bearing upon the case.
5. To appreciate the controversial point involved, it would be useful to lay down the foundation of section 488, Criminal Procedure Code. Under section 488, Cr.P.C., the Magistrate is empowered to award monthly allowance for the maintenance of the child or the children, as the case may be, on the satisfaction that the father, having sufficient means, neglected or refused to maintain the child or the children who were unable to maintain themselves. The requisite conditions, therefore, are:
(i) that the child must be unable to maintain itself;
(ii) that the father neglects or refuses to maintain the child; and
(iii) that the father having sufficient means neglects to maintain his child.
It would, thus, appear that the foundation in the exercise of jurisdiction under section 488, Cr.P.C. rests on the finding that the person concerned having sufficient means has neglected or refused to maintain his child unable to maintain itself. Obviously, it would be a question of fact to be determined on the circumstances and evidence in each case as to whether neglect or refusal to maintain the child has been made out or not; and it would not matter as to who produces the evidence to support his case. The evidence as a whole, irrespective of the fact as to who brings it on record, is to be evaluated.
6. Under Muhammadan Law a father ordinarily is bound to maintain the child if it remains with his mother especially when the custody, in consideration of the age, under the personal law also remains with the mother. In such cases neglect or refusal to maintain the child is to be attributed, to the father and the father is required to explain away satisfactorily as to ilk what way he can avoid maintenance allowance to the child.
In the instant case both the children (female) are even at present under nine years of age and under the Muslim Law the mother, Mst. Maqsooda Begum (the parties are also in agreement), is entitled to keep them in her custody.
7. The question whether the father; under some circumstances, is or was entitled to the custody of the children is the job of the Civil Court. A Magistrate has no jurisdiction in a proceeding under section 488 of the Code to determine as to who is entitled to the) custody of a child. If the father claims to have the child made over to him (as is claimed in this case), the proper course for the father is to apply to the Civil Court for an order declaring him its guardian and directing the child to be handed over to him. In David Sassoon v. Emperor A I R 1925 Bom. 259, it was found that as a fact it was proper that the children should remain with the mother and that there was neglect on the part of the father to maintain the children. In a short judgment reported as Ebrahim Mahomed Mukri v. Khurshedbai Mukri A I R 1941 Bom. 267, Beaumont, C.J., speaking for the Court made the following useful observation:
"The object of section 488, no doubt, is to avoid vagrancy by providing that a Magistrate may up to a limited extent see that a wife and children are maintained by a husband or father able to maintain them. But I think that the Magistrate must take the facts as he finds them to be. If in fact the children are living with the wife, and if in fact the father is refusing or neglecting to maintain them where they are living, I think that the Magistrate has jurisdiction to make an order. If the father"s case is that the children ought not to be living with the wife, but ought to be living with him or under his" direction, then he must take proper proceedings in a civil Court to get the children removed from the custody of the mother. No doubt, such proceedings may sometimes involve expense, which a father is unable or unwilling to bear, but that cannot deprive the Magistrate of the right to exercise his powers under section 488. If the civil Court makes an order under which the children cease to reside with the mother and if the father is then willing to provide for their maintenance, he can, of course, apply to the Magistrate under section 489 to modify his previous order.
8. It may be noticed that an order to maintain the children in the future (as is done in this case) has never been considered sufficient to debar the Magistrate from making an order under subsection (1) of section 488 of the Cr.P.C. To adjudge the bona I fides, a Magistrate would be entitled to consider the circumstances in which the offer was made and whether it was right and proper that the child, if not in the custody of the father, should be handed over to him.
9. From the above it follows that if the custody of a child happens to be with the mother albeit a divorced wife, as the case is before us, there is absolute liability of the father to support the child irrespective of any other consideration. More or less indentical view prevailed in Mst. Mehtab Bibi v. Allah Bakhsh [17 P.R. Cr. 1885], David Sassoon v. Emperor A I R 1925 Bom. 259, Maung San Pe v. Ma Lai Mai A I R 1932 Rang. 183, Ma Shwe Kyin v. Maung San Nyein A I R 1937 Rang. 205, Ebrahim Mahomed Mukri v. Khurshedbai Ebrahim Mukri A I R 1941 Bom. 267 and Kuppala Krishtappa v. Premaleelamani A I R 1942 Madras 705.
10. It would be sufficient to narrate briefly the facts of two cases only. In Ma Shwe Kyin v. Maung San Nyein A I R 1937 Rang. 205, referred to above, a learned Single Judge of the Rangoon High Court laid down the proposition that where after the dissolution of marriage a minor child, born during coverture, lives with the mother and the husband is admittedly the father of the child, it is his duty to make an allowance for its maintenance unless he can show that there has been no negligence or refusal on his part to support and maintain him. On the facts, it was found in that case that negligence or refusal of the father to maintain was proved. Likewise in Kuppala Krishtappa v. Premaleelamani A I R 1942 Mad. 705, referred to above, Harwill, J., expressed the opinion that as long as the child is with the mother, she must be given sufficient to maintain the child, as the father must be relegated to the appropriate remedy for the custody of the child by proceedings in a competent Court. In the opinion of the learned Judge it would be improper for the Court to refuse maintenance for the child merely because it was of the view that the mother had no right to the custody of the child.
11. We are in respectful agreement with the view expressed by eminent Judges of the time in the aforesaid cases that a child in the custody of the mother, who is also entitled to have the custody of it under the personal law, is to be maintained by the father and it cannot be a valid defence that the child would be maintained in the event the mother allows him to reside with the father and the child comes to reside with him. No doubt, the right of custody is the exclusive function of civil Court to determine, nevertheless the question of right of custody of the child is an important fact which is always considered in such like cases. To us it is difficult to agree with the learned counsel that the question of right to custody of the child is not at all germane to section 488 of the Criminal Procedure Code. It may very well have vital bearing on the question whether a father has, in fact, neglected or refused to maintain the child or not. The provisions of section 488 of the Criminal Procedure Code, in our view, are not intended to shut out entirely all references to the personal law by the parties except in respect of which a clear departure has been made from that law in the section itself.
12. If the rule of law gives to a Muhammadan mother a right of guardianship of her minor children, as the case is before us, we cannot see any valid objection on the part of the father to maintain the child, in 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. On the point from Pakistan jurisdiction, in Hamida Begum v. Mashaf Hussain Shah P L D 1958 S C (Pak.) 284, speaking for the Court, it was observed by S.A. Rahman, J:
"It would be difficult to affirm in these circumstances that the question of the right to custody of the child is not at all germane to section 488, Criminal Procedure Code. It may very well have a bearing on the question whether the father had in fact neglected or refused to maintain the child or not.
The provisions of section 488, Criminal Procedure Code, however, are not intended to shut out entirely all reference to the personal law of the parties except the matters in respect of which a clear departure has been made from that law in the section itself.
If the rules of that law give to a Muhammadan father a prima facie right of guardianship of his minor child, 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.
To insist that the father in such cases must be forced to go to the proper civil Court for redress, may be tantamount to putting a premium on the act of a party acting wrongfully. It may be, in our opinion, sufficient for the father to establish that he had all along been anxious and had made bona fide demands for the custody of his minor child whose legal guardianship under the personal law vested in him, for, a plea to be advanced successfully on his behalf, in answer to a petition under section 488, Cr.P.C., that in the absence of compliance with his wishes, he was not guilty of negligence or refusal to maintain the child, by declining to make an allowance for its upkeep."
13. On the face of the facts of the present case, we find that ever since the separation and divorce of Mst. Maqsooda Begum, the children remained continuously with their mother and the appellant, their father, failed to provide maintenance to them. This is even admitted by him in his statement before the High Court. Since the right of the custody of the minors under the Muslim Law is with the mother, the simple application without evidence, in our view, was sufficient to require the appellant to give maintenance allowance to the infants and it was the appellant who was required to show that circumstances were such that he cannot be asked to pay maintenance allowance to the children. He failed to bring on record any such circumstances to disentitle the children to have maintenance allowance from him. When a child lives with a person who is entitled to have its custody, the father would be under a duty to pay maintenance allowance for the child to the person entitled to its custody.
14. In the instant case, as said elsewhere, the minor daughters are less than nine years of age and the mother, Mst. Maqsooda Begum, is entitled to retain their custody and since the father has refused to maintain them, it has rightly been said that he is guilty of negligence or refusal to maintain them by declining to make an allowance for their upkeep. From the evidence on record, we find that ever since the separation and divorce of Mst. Maqsooda Begum, the children remained continuously with their mother and the appellant their father failed to provide maintenance to them at least from the date the application was made before the trial Magistrate. As said elsewhere, since the right of custody of the minors under the Muhammadan Law is with the mother, in our view, the simple application without any evidence on the part of the minors, was sufficient to allow maintenance allowance to them unless the appellant proves the circumstances to disentitle the children to have maintenance. The appellant failed to prove any such event and even failed to put himself into the witness box in the trial Court to repudiate the genuineness of the claim put forth on behalf of the children. To have clarity in the matter the High Court was constrained to record his statement to which the reference will be made in the later part of the judgment. The statement clearly shows that the appellant neglected to provide maintenance allowance to the children without any plausible reason and he, being an able bodied person, is presumed to have sufficient means to pay maintenance to the children.
15. In view of the above the question of dispensation of the personal attendance of the appellant and recording the statements of the witnesses of the respondents in the trial Court in presence of the appellant loses all importance because, as discussed above, it was the father who was to prove that in any way he could avoid payment of maintenance allowance to the children who are in the custody of legal and natural guardian, the mother, and the simple application on behalf of children would be considered sufficient to put the appellant in defence to bring on record such facts which would disentitle the children to the maintenance allowance.
16. What do we mean by "child" under section 488 of the Criminal Procedure Code "Child under section 488 means a minor unable to maintain itself. Section 488 creates a statutory liability, independent 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 natural meaning or in such a way as to produce an absurdity. Though the word "child" in its wider 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 years of age just because his parents are alive. In most cases, however, no difficulty will arise, in view of the condition the section 488 imposes that the child must be unable to maintain itself. Normally a child, after attaining majority, would be physically in a position to maintain itself and it would be said that the child is capable to earn some kind of livelihood. But this again is a question, which will depend upon the status and circumstances of each individual family. Thus, although this 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. This view prevailed in Alaf Din v. Mst. Parveen Akhtar P L D 1970 S C 75. It was held in that case by Hamoodur Rahman, C.J.
"Section 488, Cr.P.C. creates a statutory liability, independent from the personal law liability, for the maintenance of one"s wife and children, both legitimate anal 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 years of age 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 upto a very advanced age, while an able bodied son or daughter might be deprived of the right if he/she has already found suitable gainful employment and is in a position to maintian 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 level ad infinitum. What is necessary to decide in this connection 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."
17. Reference to age in section 488, Criminal Procedure Code, it appears, is purposely omitted; the object being, that any son or daughter is entitled to maintenance so long as he or she is unable to maintain himself, or herself. Sm. Purnasashi Devi v. Nagendra Nath Battacharjye A I R 1950 Cal. 465 owns this view. In that case it was observed by Das Gupta, J.
"It seems to me that the word "child" has been deliberately used to leave the Courts free to order maintenance for such sons and daughters as are unable to earn livelihood for themselves, having due regard to their class of society to which they belong and other surrounding circumstances. The fact, therefore, that the son is 17 or 18 or 19 is, in my opinion no ground for refusing maintenance on his account."
8. From the above, it follows that the word "child" for the purpose of maintenance even included a "child" who has attained puberty or majority but unable to maintain itself. What is required is that the child must be maintained unless he is in a position to earn its own livelihood in an honest and decent manner in keeping with its family status.
19. It would, thus, appear that the age is of secondary importance. What is important is that a person should be unable to maintain himself irrespective of his age. This view was also owned by Madras and Bombay High Courts. There is no qualification of age. The only qualification is that the child must be unable to maintain itself. Section 488 is, therefore, not confined to those children only who are under) the age of majority. In Muhammad Yar v. Ali Muhammad AIR 1941 Lah. 92, it has been held that a father is bound to maintain the child even at the age of eighteen years if at that time he is unable to maintain itself.
20. As said earlier in the present case Zafar Iqbal failed to appear as witness in support of his objections before the trial Magistrate. In view of the special circumstances of the case, the learned Judge in the High Court felt persuaded to record his statement to determine the question as to whether there could be any plausible legal reason with the appellant to avoid the payment of maintenance allowance of Rs.200 to each of the child awarded by the trial Magistrate. In his statement, the appellant admitted that the children were with their mother few months prior to the application moved before the trial Magistrate. He denied to have provided maintenance allowance to the minors during this period. However, he stated in answer to a question in cross examination that he paid a sum of Rs. 1,000 to the grandfather of the minors as expenses incurred on the medical treatment of the minors prior to the date of the application.
21. Thus, it was admitted by the appellant that as a matter of fact he failed and neglected to pay maintenance allowance to the minors. It may be stated here that in his pleadings he refused to maintain the minors as his wife left his house against his consent. In his testimony before the High Court he, however, offered to maintain the minors provided they were given in his custody and not otherwise. He also stated that he was a poor man unable to pay the requisite amount of allowance. The offer to maintain the children if they live with him, made by the appellant in the High Court, was rightly excluded from the consideration as that was no excuse to deny maintenance allowance to the children and the same was also not made in good faith.
22. This brings us to determine the important controversial point as to whether the evidence of the respondents recorded in absence of the appellant is to be excluded or is to be read as the same was recorded after dispensing with the personal attendance of the appellant. After coming to the conclusion that it was the appellant who was to prove as to how he was entitled to refuse the maintenance allowance to the children and the simple application was sufficient to put the appellant in defence, the question of dispensation of personal attendance of the appellant remains only of academic interest. But we propose to dispose it of for the guidance of the subordinate Courts.
23. The law is well settled that under subsection (6) of section 488 of the Criminal Procedure Code all evidence shall be taken in the presence of the husband or father, as the case may be, or when hiss personal attendance is dispensed with in the presence of his pleader.
24. It would, thus, appear that as argued the evidence under Chapter XXXVI is necessarily to be taken in the presence of the husband or the father, as the case may be, unless his personal attendance is dispensed with and he is allowed to conduct the case by his pleader. This would clearly show that if a person is not represented by a pleader and he absents himself; evidence under the Chapter against him would only be recorded if he is proceeded ex parte for his wilfully avoiding the service or wilfully neglecting to attend the Court. If this procedure is not adopted the entire proceedings would vitiate. The Court, however, may at times deem it proper to dispense with the personal appearance of the husband or the father, as the case may be, and allow the evidence to be recorded in presence of his pleader.
25. The inquiry, it is desirable, should be conducted in presence of the person proceeded against and the proceedings under this section should be avoided to be conducted ex parte unless of course the Court is satisfied that the defendant is wilfully avoiding the service of summons or is neglecting to attend the Court. However, if his personal attendance is dispensed with, evidence can be taken in his absence in presence of his counsel.
26. As said elsewhere, the proceedings can be conducted in presence of the pleader when the personal attendance of the defendant has been dispensed with. Dispensation, we believe, can he made by an express order or by implication. It is of significance to note that where the attendance has not been dispensed with and the husband or the father is also not wilfully avoiding the service, the Court is justified in refusing to proceed with the case and insist upon the presence of the defendant. In such cases, the Court ought not" ordinarily proceed ex parte. This clearly conveys the impression that if the Court declines to proceed ex parte and also records evidence in presence of the counsel for the defendant it impliedly dispenses with the personal attendance of the person proceeded against.
27. Whether in the case before us there was dispensation of the personal attendance of the appellant by an express order or by necessary implication is the next question to be answered, On this aspect two/three important factors are to be taken into consideration. In the first instance when the evidence was recorded the "Magistrate did not refuse to record the evidence in absence of the appellant and the learned counsel for the appellant also failed to raise any objection to the recording of the evidence in absence of the appellant. This clearly signifies that the learned Magistrate and the learned counsel both considered recording of the evidence in absence of the appellant as a legal method. This would impliedly convey clear sense that the personal attendance of the appellant was dispensed with by implication because evidence without ex parte order (which is not the case here) could not be recorded. Besides, the learned counsel also failed to request the Court not to record the statements in a sence of the father.
28. In the circumstance, it would be presumed that there was implied dispensation of personal attendance of the appellant, by the trial Magistrate. Additionally the evidence of the respondents was closed before 10 1 1985. Or, 10 1 1985, 15 1 1985, 28 1 1985, 16 2 1985 and 26 2 1985the appellant was present in the Court but neither he nor his counsel made any grievance to the Magistrate that the evidence on behalf of the respondents in his absence may not be recorded, and the respondents may be asked to examine their witnesses afresh in his presence. It also appears that no such argument on behalf of the appellant was even raised in the trial Court.
29. From the above conduct of the appellant, his counsel and that of the learned Magistrate, the contention of the learned counsel for the respondents that the personal attendance of the appellant was dispensed with by implication gets support.
30. The above factors give weight to the argument of the learned counsel for the respondents that the personal attendance of the appellant was dispensed with by implication. We, therefore, hold that circumstances in the present case raise preponderance of probability to the effect that the trial Magistrate impliedly dispensed with the personal attendance of the appellant and allowed his counsel to conduct the case and cross examine the witnesses in his absence.
31. In the instant case on the face of the allegation that the maintenance was not given to the children, the burden to prove that circumstances were such that the appellant was not entitled to maintain the children was on him. How far the appellant succeeded to place on record any material to provide sufficient grounds for him to refuse maintenance allowance to the children is the next question to be determined. The appellant, in his statement before the High Court, admits that he failed to pay maintenance allowance to the children after the application for maintenance was made before the trial Magistrate. Since the children are in the custody of the legal and natural guardian the mother nothing more is required in proof of refusal or neglect to pay maintenance allowance to the children on the part of the appellant; the very statement of the appellant is sufficient to hold that the appellant failed and neglected to provide maintenance allowance to the children.
32. In view of the above we conclude the matter in the following way:
(i) Phraseology of subsection (6) of section 488, Criminal Procedure Code, makes no room for the argument that the word "shall" is used in a directory way. It is used in a mandatory way, but the dispensation of the personal attendance of the father or the husband, as the case may be, can be made by an order,) express or implied;
(ii) A father is obliged to maintain his child when the child remains in the custody of a person when such person is ordinarily entitled to retain its custody under his personal law;
(iii) A father cannot raise a valid plea that he would maintain the child living in the custody of a person entitled to have its custody, if the custody of such a child is reverted to him. The proper course for such a person is to approach the civil Court to have the custody of the child and until that time he is bound to maintain the child or children;
(iv) In the instant case even if we exclude the evidence of the witnesses examined on behalf of the children, it would make very little difference in the present case. The children the parties are in agreement, are in the custody of the mother and the appellant also in his statement before the High Court stated that he failed to provide maintenance allowance to the children from the date the application was made before the trial Magistrate. Therefore, even in the absence of any evidence on the part of the children, the appellant is obliged to pay maintenance allowance to the children till the time they remain in the custody of the mother; and
(v) The appellant, being an able bodied person of thirty-three years of age, will be presumed to be capable to provide the amount of allowance to the children.
In view of the above we do not feel inclined to accept this appeal, which stands dismissed hereby.
Before parting with the case it may be observed that if the appellant is interested to have the custody of the minors, he is at liberty to apply to the civil Court for the purpose.
M.B.A./245/S.C.A.
Appeal dismissed.
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