Mst. Nasim Akhtar was the wife of Muhammad Ramzan, Muhammad Saleem is son and Shamim Akhtar daughter of Muhammad Ramzan petitioner. An application was moved by the wife and children of Muhammad Ramzan for payment of maintenance allowance, under section 488, Cr.P.C., in the Court of Magistrate 1st Class, Mirpur, on August 10, 1986. The application was partly allowed on November 30, 1987. The claim of the wife was refused whereas the minor children were provided amount of maintenance allowance @ Rs,200 each child per month, from the date of the application. An application for recovery of the amount was moved. Meanwhile, Muhammad Ramzan moved the District Judge for his appointment as guardian of minors. On May 4, 1988, a compromise was effected between Muhammad Ramzan and Mst. Nasim Akhtar. In the light of the terms of the compromise, a sum of Rs,6,000 in cash and 18 tolas golden ornaments were delivered to Mst. Nasim Akhtar. She was also divorced. The minors were returned to Muhammad Ramzan on the condition that he shall produce them in the Court to meet their mother twice a month.
Muhammad Ramzan also executed a bond in the sum of Rs,25,000 as condition to comply with the aforesaid order of the Court. In consequence of the aforesaid compromise, the miners were handed over to Muhammad Ramzan. It appears that Muhammad Ramzan, later on, married and returned the minors to their mother. In this situation, a fresh application was moved by Mst. Nasim Akhtar, for the payment of maintenance allowance, w,e,f, August 10, 1986 to April 10, 1989. A sum of Rs,12,800 was claimed as arrears. The application was moved on April 5, 1989. The application was contested but the learned Magistrate. Ist Class accepted the application and ordered the payment of maintenance allowance to the minors w,e,f, December 24, 1989. The order was passed on March 27, 1991. This order was challenged in revision before the learned Sessions Judge without success.
The present petition has been addressed against the aforesaid orders of the subordinate Courts.
2. Mr. Abdul Latif Dutt, the learned Counsel for the petitioner contended that the minors were ineligible to claim maintenance allowance in the light of the compromise effected between their parents, on May 4, 1988. It was further argued that the custody of the minors was taken by the mother without due course of law, as such the application for recovery of maintenance allowance was beyond limitation.
3. It is an accepted rule under all systems of administration of justice that father is under duty to maintain his child. It was in the light of this spirit of law that the trial Magistrate initially granted the application of the minors by directing the father to pay the maintenance allowance according to the social conditions and status of the parties, @ Rs,200 each child per month. This order attained finality as it was not agitated or reversed at any higher forum. At the subsequent stage when the proceedings for recovery of the maintenance allowance were in progress, the husband and wife effected a compromise in consideration of which a sum of Rs,6,000 in cash and golden ornaments weighing 18 tolas were delivered to Mst. Nasim Akhtar by Muhammad Ramzan. She was also given divorce. The custody of the children was delivered back to the father. The terms of the compromise were quite vague and shrouded in ambiguity. It is not clear as to whether the amount in cash and ornaments were given to the woman in consideration of arrears of the maintenance allowance payable to minors or as dowry or dower money. Be that as it may, the fact remains that the minors were handed over to the father and he maintained them till such time when minors were sent back to the mother.
4. The definite time of sending back the minors to the mother is not evident from the record.
However, the application for the recovery of the amount was moved on April 5, 1989. Objections were filed on January 24, 1991 and the application was disposed of on March 27, 1991. The learned Magistrate allowed payment of maintenance allowance w,e,f, December 24, 1989. It is not clear from the record as to why the date of December 24 was fixed as the date from which arrears were admissible. The application, in fact, was moved on April 5, 1989 and ordinarily, the arrears should have been granted from the time when the minors were sent hack to the mother or at least from the date of the application. Be that as it may, as this aspect of the proposition has not been raised before this Court, the point does not warrant further elaboration. As noticed earlier, father was under duty to maintain his child. Whenever it was satisfied that the father neglected or refused to maintain his child, the Court was empowered to issue a directive against the father to provide maintenance allowance to the child at such rate which the Court deemed fit to fix. In presence of aforesaid obligation of a father to maintain his child, no contract, whatsoever, made by the mother or other person in whose custody the minors lived, could absolve a father of the responsibility of maintaining the child in the light of direction of the Court. Thus, the contract whereby the father was absolved of his duty to maintain his child, being patently against the interest of minors, was not enforceable. Thus payment in lump sum in terms of agreement made between the parents, cannot obstruct the enforcement of order of the Magistrate. An identical view was expressed in Maung Tin U's case AIR 1937 Rangoon 246. The relevant observation is:- "The parties cannot contract themselves out of the statutory obligation to maintain children under the Criminal P.C. The mere fact that 5.488, subsection (1), Ciminal P.C. refers to monthly allowances and monthly rates of allowances merely shows that the Court has taken the month as a convenient unit whereby to calculate allowances. It does not show that independently of an order of the Court, as where matter has been referred to arbitration, lump sums cannot be paid for the maintenance of a child. Of course, this lump sum is not a complete answer to future applications by the guardian of the minor. If at any time she finds that she has nothing left of this sum she can apply to the Court for a fresh order for maintenance and there will be no obstacle then to this fresh order in the fact that this lump sum had been paid on a previous occasion".
5. The other point pertains to limitation for enforcement of the order of maintenance allowance.
The period of limitation under subsection (3) of section 488, Cr.P.C. Proviso-II, is one year from the date of which the amount became due. In the present case, the first application was moved in time. The proceedings were in progress when the compromise was effected and minors were handed over to their father. The second application was moved after the minors were returned to the mother on April 5, 1989. The objections filed by the petitioner do not contain the objection of limitation nor it shows the exact date when the minors were sent to or taken back by the mother. In this view of the matter, the objection of limitation finds no favour. There is no force in the petition. It is, therefore, dismissed.