Mst. Zareena Begum is wife of Muhammad Ayub, petitioner. They were married in 1983. According to Zareena Begum, 5 months after the marriage she was forced out of the house of her husband and since then she wasdiving with her parents. As the husband failed to maintain her, she moved the Magistrate for grant of maintenance allowance, under Section 488, Cr.P.C., on May 28, 1989. She claimed maintenance allowance @ Rs,500 per month. The application was contested. The allegations made in the application were repudiated by the husband. Mst. Zareena Begum appeared as a witness in support of her application and produced Kala and Muhammad Hanif, to corroborate her. From the other side, Manzoor Hussain, Muhammad Shafi, father of Muhammad Ayub, petitioner and Said Muhammad appeared as witnesses. The learned Magistrate felt satisfied to accept the application, as such maintenance allowance was granted in the sum of Rs,400 per month, with effect from June 1, 1989. This order has been assailed in the present petition.
2. Mr. Abdul Salam, the learned counsel for the petitioner, contended that the husband was already maintaining his wife. The application was frivolous and the same was not supported by an evidence. It was also contended that Mst. Zareena has filed a suit for divorce, as such the impugned order is not sustainable. He cited PLD 1977 Lahore 90. These points were controverted by Mr.Shahid Ahmed Rathore, the learned counsel for the lady.
3. The provisions of Section 488, Cr. P. C. were introduced to provide necessary maintenance allowance to wife and children as legitimate course of action. These provisions are quite akin to Islamic injunctions, whereby husband and father are burdened with sacred obligation to provide maintenance allowance to wife and child. Thus, ordinarily, a wife when not provided maintenance by her husband despite having sufficient means, is clothed with the right to seek her redress by invoking the provisions of Section 488, Cr.P.C. It is enjoined upon the Magistrate to ascertain whether the husband was negligent in providing maintenance to his wife or not. Next, it was also to be ascertained whether the husband was able and in a position to provide such maintenance. In case of claim of a wife, it was further necessary to ensure that the wife was not deprived or ignored from such maintenance due to her own act or attitude. These are the essential ingredients which require their satisfaction by evidence of the parties, before grant or refusal of maintenance allowance.
4. In the present case, it is admitted that the husband is an able-bodied person and is presently serving in Dubai. It is also on record that he has a second wife and children out of the same. The second wife is living with the husband and is being properly maintained. It is also on record that Mst. Zareena Begum is living with her parents. It is, however, controverted by the petitioner that she is not entitled to maintenance allowance as she was provided with separate house by the husband when he left for Dubai and also sent her maintenance allowance from time to time. Mst.
Zareena Begum deposed that she was forced and compelled by her in-laws, to leave the house of her husband 'when the husband was already out of the country. Thereafter she was not brought back to live in the house of her husband.
5. To provide a separate house, by itself is not sufficient to deny the maintenance allowance to the wife as in addition to living, a wife also requires her food, clothes and other necessities of life. On successful proving negligence ascribed to the husband, the onus shifted on the husband to satisfy the Court that he supplied means to the wife, sufficient enough to maintain herself. In the present case, though it was suggested that the wife was in possession of Rs,23,000 at the time of her departure, given to her by her husband and that she was sent money from abroad, but no receipt or any other positive evidence was given on behalf of the husband. The husband did not appear as witness and his claim was contested by his father who is really responsible person for the desertion, and separation of Mst. Zareena Begum, from her husband. The second marriage also appears to be the result of attitude of the parents of the husband.
6. The authority cited by the learned counsel for the petitioner, in support of his contention is not disputed on the principle of law. However, the facts of that case were quite distinguishable from the facts of present case. In that case, the husband lived in the country. He sent many respectablcs of the village to bring his wife. He also secured a decree of the Court for restitution of conjugal rights.
In presence of all the aforesaid circumstances, the wife declined to live with the husband. Under the circumstances, the learned Judge, Mr. Justice Abdul Jabbar Khan, observed:- " It is duty of the Muslim wife to perform her part of obligations so ordained by Qur'an and Sunnah and then to claim maintenance if her husband still chooses to neglect her." 'This view was based on other authorities listed in the aforesaid judgment. In the present case, as noticed earlier, the husband is living in Dubai. There is no evidence that he ever took steps to take his wife to Dubai to live with him nor there is decree for restitution of conjugal rights in favour of the husband. In this case, negligence of the husband to maintain his wife is fully proved. The impugned order warrants no interference.
7. The amount of maintenance in the sum of Rs,400 per month, under present conditions, is quite insufficient. Even a poor person is compelled by virtue of escalation of prices of necessary goods, to spend more than Rs,1,000 per month as single individual. It is, therefore, earnestly desirable that the legislature may take notice of the amount prescribed under law and enhancce it, at least, upto Rs, 1,000 per month for a wife or child. A copy of the order shall be sent to the Secretary Law, Azad Government of the State of Jammu and Kashmir, for placing the matter before the Assembly. The petition merits no consideration. It is, therefore, dismissed.