' This is a revision petition against the judgment of the learned Revenue Assistant/Magistrate Ist Class, Muzaffarabad dated 28-4-1984, whereby the learned Magistrate dismissed the application of Mst. Shaheen Begum petitioner under section 488, Cr.P.C. Finding no force in her application for maintenance.
2. The facts of the case are the following:-
(i) That the petitioner moved an application under section 488, Cr.P.C. Against her husband (non- petitioner) on 25-5-1982 and alleged in her application that she was married to the non-petitioner approximately 9 years before the application and that she got 3 children: two daughters and one son from her husband. She alleged that under the agreement Exh.P.A. Her husband Ghulam Muhammad Butt promised to settle her in his own house which was to be constructed by him at Muzaffarabad and that her husband did not fulfil his promise although the built a house in Plate Muzaffarabad.
(ii) This application was resisted by her husband (non-petitioner) who said that the petitioner had deserted him and as such he should not pay her any maintenance unless she came to reside with him.
(iii) Both the parties led their evidence before the learned Magistrate who dismissed the application vide his order, dated 28-4-1984.
2. Dissatisfied with the order of the learned Magistrate dated 28-4-1984, the petitioner has come up in revision before the High Court.
3. Mr. B.A.Farooqi, the learned counsel for the petitioner raised the following points:-
(i) That the respondent is Dispenser in the Civil Hospital, Muzaffarabad whose pay is round about Rs,1,000 per month and as such he has to pay the maintenance not only for his wife but also for his three children who are as studying in various schools at Muzaffarabad;
(ii) That she has got a house of his own at plate Muzaffarabad which has been rented out by him to somebody;
(iii) That the petitioner has not instituted any suit for the dissolution of marriage and she is ready to go with her husband if his house at Plate is made available to her because under the agreement Exh. P.A. Which was executed at the time of the 'Nikah' whereby the non-petitioner agreed to built his house at Muzaffarabad and take her to his house under agreement;
(iv) That under Muhammadan Law, he cannot refuse maintenance as regard to his three children.
As far as the petitioner is concerned, the non-petitioner has alleged that she was not ready to go with her husband. This allegation on the part of the husband is wrong and he is legally bound for the maintenance of his wife; and
(v) That the sister of the non-petitioner used to throw away some money to her as maintenance in the beginning for some months. This was the most degrading treatment meted out to her by the sister of her husband. This happened some time before the application under section 488, Cr.P C was moved when the husband and wife were living separate and when in the beginning the husband paid her some maintenance.
4. As against these points, Mr.Raja Mumtaz Hussain Rathore, the learned counsel for the non- petitioner has raised the following points:
(a) That his client Ghulam Muhammad Butt had of course built a house in the Plate Muzaffarabad but he sold that house and that it is wrong to say that his house has been nented out to somebody else. However, his contention is that the non-petitioner is ready to take her in a rented house along with her children;
(b) That the petitioner is a (disobedient wife) and as such she has disentitled herself to the payment of maintenance. Under the Muslim Law a woman who refuses to live with her husband wilfully is disentitled to her maintenance; and
(c) That the non-petitioner has moved an application before the District Judge for the custody of the three minors and as such it is not necessasry for the non-petitioner to pay the maintenance for his three children.
5. Mr,B.A.Farooqi, the learned counsel for the petitioner has referred to sections 370 and 374 of Mulla's Principles of Muhammadan Law (Pak Publishers Limited Edition of 1968) and PLD 1958 Kar.219 (220).
6. Raja Mumtaz Hussain Rathore, the learned counsel for the non petitioner has cited the following authorities:- PLD 1958 SC 284. PLD 1958 Kar.
219.
PLD 1963 Dacca 583.
PLD 1977 Lah.
90.
7. I have duly considered the arguments advanced at the Bar and have also gone through the record carefully.
8. The husband is duty bound to maintain his wife. I reproduce Syed Ameer Ali's Muhammadan Law page 364, Vol.II.
"The husband is legally bound to maintain his wife and he domestic servants whether she and her servants belong to the Muslim Faith or not. "It is incumbent on the man to maintain his wife," says the Fatawai Kazi Khan, "whether she be Moslemah or non-Moslemah (lit. Zimmia), poor or rich whether there has been copula or not whether grown up (adult) or young, so that intercourse with her is possible."
' The basic book of our Fiqah is 'Alqadoori'. The relevant text of `Qadoori' is {{URDU TEXT}} ' Qadoori has said "It is Wajib for a husband to pay the maintenance of his wife whether she is a Muslim, Zimmia or Kitebia so long as she lives in the house of her husband who shall be responsible for her food, clothes and residence."
Qadooris' well-known Commentaries are- a) Hadaya and b) Al-Jauheratun-Nayyerah {{URDU TEXT}} ' No I would like to quote the Urdu translation of Hadaya known as Ainul Hadeya, Vol. II, page 332 Hitebul {{URDU TEXT}} ' In this translation of Hadaya the Quranic Ayat 2:233, is referred to, which reads:- {{TABLE}} "The mothers shall give suck ' To their offspring ' For two whole years, ' If the father desires To complete the term. But he shall bear the cost Of their food and clothing On equitable terms. No soul shall have A burden laid on it Greater than it can bear. No mother shall be Treated unfairly On account of her child, Nor father On account of her child An heir shall be chargeable In the same way If they both decide On weaning By mutual consent, And after due consultation, There is no blame on them. If ye decide On a foster-mother For your offspring, There is no blame on you, Provided ye pay (the mother) What ye offered, On equitable terms. But fear Allah and know That Allah sees well What ye do."
' While fixing the amount of maintenance, regard is to be paid to the condition of the Husband and also to the high prices prevalent today. I quote from page 365 of the same book:- "Karkhi has said that in fixing the amount of maintenance regard is to be paid to the condition of the husband and not to the position of the wife, and This is the Zahir-ur-Rawayat (most approved doctrine) and also the doctrine of Imam Shafei. But Khassef has said, and so it is stated in the Hedaya, that when the condition of the husband and wife are not equal, in other words, when one is rich and the other poor, a proper means should be adopted between the two; and on this is the Fatwa. And the Hedaya supports its view by the Hadis in the SahihulBokhari from 'Ayesha that on one occasion Hind, daughter of 'Otba, came and complained to the Prophet (p.b.u.h) that her husband Abu Sofian was a miser, and did not support her and her child properly. The Prophet (p.b.u.h.) said, "take what is necessary but be moderate".
9. In Azad Kashmir, mostly the Muslims are Hanafis and therefore, Hanafi law applies to the case of the parties before me. According to the Hanafi Law, it is the duty of the husband to maintain his wife. I quote the said book from pages 365-366.
"The husband is bound to maintain his wife even if she be residing in her father's house provided he has not required her to come to his own house, and can cohabit with her there." If he has called upon her to come and live with him, and she has refused without any valid or justifiable reason, such as the non-payment of prompt dower or illness, she is not entitled to maintenance while residing in her father's house. But if she is ill in her father's house and the husband wants to remove her to his house, and there is no risk or danger to her health in such removal, and she refuses, she will not be entitled to maintenance". (The underlining is mine).
' It is mentioned in Ainual Hadaya, Vol. II at pages 333-334 : - ' I have been informed that a suit for the recovery of dower is sub judice before the Court of the Sub-Judge.
10. A wife is entitled to have a house for her living.
"In fixing the amount of maintenance, the Kazi must pay regard to the position of the parties, the requirement of the wife and the dearness of provisions. And he may direct the payment to be made either daily, or by the month or by the year, as may be most convenient to the man, for a labourer earns by the day, and it may be convenient to him to pay daily, But in every case it must be in advance, though the husband may agree to pay and the wife may agree to take, the maintenance in any way he chooses.
' The wife is not entitled merely to maintenance in the English sense of the word, but has a right to claim a habitation for her own exclusive use, to be provided consistently with the husband's means.
It is incumbent on the husband to provide a separate apartment for his wife's habitation, to be solely and exclusively appropriated by her, because this is essentially necessary to her, and is therefore, her due, same as her maintenance, "and the word of God appoints her a dwelling house as well as a subsistence" (6-Hadaya,Vol.I, p. 401) of Ameer Ali's Book. (Underlining is mine).
' A house (building) to live in is also necessary for a wife. It becomes all the more necessary if there is an agreement about the provision of a separate house for a wife.
' I would like to quote Hadaya again: {{URDU TEXT}} ' The translation at page 339, Vol. II of Ainul Hadaya reads:- {{URDU TEXT}} ' I would also like to quote a proposition from the Urdu translation of 'Qadoori' from page 194:- {{URDU TEXT}} ' Section 370 of Mulla's Principles of Mahammedan Law referred to by Mr. B.A.Farooqi the learned counsel for the petitioner reads as follows:- "A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother ;during their infancy does not relieve the father from the obligation of maintaining them.
But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances"
' I would like to quote from the Urdu translation of 'Qadoori' from page 195:- {{URDU TEXT}} ' It is the duty of every father to maintain. His child so long that child remains a minor. Under the Muslim Law, a mother is entitled to keep the custody of the girl until she attains puberty. The father has generally got no right to demand the girl from the mother. While on the other hand, he is on duty bound to maintain her even though the child remains with the mother and even though the mother is not entitled to maintenance because she lived on her own accord PLD 1954 Pesh.
13.
' It is mentioned in Hadaya that the maintenance of minor children is the responsibility of their father: {{URDU TEXT}} ' The translation in Ainul Hadaya is:- {{URDU TEXT}} ' In the case of Mst. Hamida Begum v. Syed Mashaf Hussain Shah PLD 1958 SC (Pak) 284 a Full Bench of the Supreme Court of Pakistan held at page 288:-- "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 in matters in respect of which a clear departure has been made from that law in the section itself. Clearly, if maintenance is claimed by the wife, the question whether the conjugal relations still subsist between the parties, is to be decided with reference to the rules of the relevant personal law."
' In that case, divorce had taken place between the husband and wife and the Guardian Court had decided the custody of the child in favour of the husband. The child had again joined the mother.
The Supreme Court of Pakistan agreed with the High Court that no refusal or neglect on the part of the father to maintain the child was proved. Section 488, Cr.P.C. Was not, therefore, attracted to that case under the peculiar circumstances of that case. Therefore, that authority does not apply to the facts of this case.
13. In the case of Majida Khatun Bibi v. Paghalu Muhammad PLD 1963 Dacca 583, the appeal of Mst.
Majida Khatun Bibi was dismissed. In that case, the plaintiff appellant had refused to return to her husband without a sufficient cause and, therefore, it was rightly held that she was not entitled to maintenance. Therefore, that case also does not apply to the facts of the present case.
14. I need not discuss the other authorities because in this case, the petitioner has not refused to live with her husband. She has not instituted a suit for the dissolution of marriage against her husband which fact shows that she is not at fault. I have seen the agreement Exh. P.A. In which the non-petitioner agreed to build a house at Plate where he promised to live along with her. The condition No,4 of that agreement dated 24-4-1973 appears to have been violated by the non- petitioner (husband). She is perfectly justified to insist upon the agreement Exh. P.A. The non- petitioner is an educated person as he is a dispenser and it cannot be said that he blindly signed the agreement Exh.P.A. Executed at the time of marriage that he would provide his wife with a house. According to Hadaya, Vol. II, p. 401 quoted above, it is incumbent on the husband to provide a house for his wife especially when it has been agreed upon by them. So he is bound to provide the house to her under an agreement Exh.P.A. She is, therefore, entitled to the maintenance as well as a dwelling house.
15. The very first Ayet of Suratul Maida reads:- {{URDU TEXT}}: " Muslims! Fulfil your all obligations"
' According to Imam Reghab Isfahan all kinds of contracts are meant in this Ayet. Maulana Muhammad Shafi has defined such contracts in Muaref-ul-Quran, Vol.III at pages 12 and 13 which may be read for further study.
' There is another Ayet which also deserves attention. It is 17:34 and reads:- "And fulfil every engagement for every engagement will be enquired into (On the day of Reckoning)".
' Maulana Muhammad Shafi wrote in Kuareful Quran, Vol. V. At pages 467 and 468:- {{URDU TEXT}}
16. Under these circumstances, I accept this revision petition, set aside the order of the learned Revenue Assistant Magistrate Ist Class, Muzaffarabad dated 28-4-1984 and order the non- petitioner Mr.Ghulam Muhammad Butt to pay Rs,500 per month as maintenance for his three children: two daughters and one son from the date when the petitioner moved the application under section 488, Cr.P.C. i,e, from 25-5-1982.
17. I have not ordered for the maintenance of Mst. Shaheen Begum because the parties are drifting away from the limits of Allah and she may bring a suit for the dissolution of her marriage.
18. Before I part with this case, I would like to mention that:-
(a) According to an amendment effected on 21st of October, 1983, the words "four hundred" have been substituted for the words "one hundred" in subsection (1) of section 488, Cr.P.C. And, therefore, the old law is not applicable to this case.
(b) Before passing this order, I called for the parties: the husband and the wife both had asked them to sit together and see if some compromise could be effected between the spouses. Mr. B.A.
Farooqi, Advocate also remained with them for some time. Mr.B.A.Farooqi Advocate then left the husband and the wife to talk alone. The petitioner and the non-petitioner remained together for about two hours, talked together but could not come to terms.
' It was after this failure of compromise on the part of the parties, that I pass this order.
(c) The question as regards the custody of minors is sub judice before the learned District Judge.
This order shall be effective till the question of the custody of minors is finally decided and shall stand modified by the order passed in respect of the custody of the minors.