' A reference has been made by Khan Muhammad Afzal Khan Additiona Sessions Judge, 1, Lahore under section 438, Cr. P. C. To this Court, withl the recommendation to revise the order dated 13-4- 1964, so that the direction to Bahadur Khan to pay Rs, 25 p. m. To Bhag Bhari for her maintenance be set aside and that the order regarding the payment of maintenance in respect of Mst. Zamir Akhtar be maintained.
2. The facts of the case briefly are that Bahadur Khan's wife Mst. Bhag Bhari moved Magistrate 1st Class, Lahore under section 488, Cr. P. C. To order Bahadur Khan, petitioner, her husband to maintain her, as well as her minor daughter Mst. Zamir Akhtar. The learned Magistrate vide his order dated 13.4-1964 ordered Bahadur Khan to pay Rs, 50 in ail to Mst. Bhag Bhari as her maintenance allowance and that of her minor daughter in equal shares. Although Bahadur Khan had resisted this application by contending that Mst. Bhag Bhari despite decree of restitution of conjugal rights passed against her, had refused to live with him and to perform conjugal obligation.
3. Bahadur Khan petitioner moved a revision petition before the Court of Additional Session Judge, I Lahore, by which he challenged the impugned order. The learned Additional Sessions Judge formulated the following points for adjudication: - (a)Whether the Court exercising jurisdiction under section 488, Cr. P. C. At Lahore, had jurisdiction to entertain the petition filed by Mst. Bhag Bhari.
(b)Whether Bahadur Khan was proved to have neglected or refused to maintain his wife Mst. Bhag Bhari and a child Mst. Zamir Akhtar.
(c) Whether the direction to Bahadur Khan to pay Rs, 50 p. m. By way of maintenance was reasonable, if not, what amount would be reasonable in this case."
4. The learned Additional Sessions Judge found issue No, 1 in favour of Mst. Bhag Bhari and held that Court in Lahore had the jurisdiction to hear the case under section 488, Cr. P. C., as the couple lived at Lahore in 1957. According to the learned Additional Sessions Judge the period of residence though short but any way it was sufficient to connote that the couple was resident of Lahore for the purpose of jurisdiction. As regards the second issue the learned Court held that as Mst. Bhag Bhari had failed to obey the decree of the Court against her to perform the conjugal rights, therefore she was not entitled to maintain by her husband. However it was observed by the learned Additional Sessions Judges that Bahadur Khan was duty bound to maintain his minor daughter and for that reason, he recommended that Bahadur Khan should be directed to pay Rs, 25 as maintenance for her min or daughter.
5. After the receipt of this reference notice was issued by this Court to respondent on 16-11-1964.
This case was put up again on 23-2-1968 almost after four years and it was directed that notice be issued to the parties and case should be fixed for 2-23-1968. On 28-5-1968 learned Judge of this Court found none present and directed that this matter be again fixed within three weeks, as it was an old case and needed speedy disposal. On 12-7-1968 it was again found that none had been served and then the matter went to cold storage and it was put up before me for the first time on 23-1-1976 after full 8 years. The arguments were fully heard and the case has been finalised today.
' I have heard the learned counsel for both the parties and have perused the order of the Magistrate and contents of reference made by the learned Additional Sessions Judge.
7. It has been contended on behalf of Bahadur Khan petitioner that the order of the learned Magistrate was without jurisdiction and thus any structure based on that order will be nullity in the eye of law. Reliance in this matter was placed on Charan Das v. Mst. Surasti Bai (1). It was submitted that according to the case of Bhag Bhari respondent herself, Bahadur Khan her husband only stayed in Lahore with her for 10 days and never came back, when he left the place telling her that be would be coming back after collecting his implements for doing some job as a labourer. In view of this admission on the part of Mst. Bhag Bhari, it was argued that this short sojourn of Bahadur Khan at Lahore, will not fall under the term
(1) AIR 1940 La.h. 449 residence, a pre-requisite for conferring jurisdiction on the Court under section 488, Cr. P. C.
8. On the other hand it has been submitted on behalf of Bhag Bhari that Bhadur Khan and Bhag Bhari came with all intents and purposes to settle permanently at Lahore and it was only after that Bhadur Khan deserted her and slipped away to Chakwal, where he had contracted a second marriage and left his wife and his minor child to face the vicissitudes of life and perils of a strange environment. It has also been pointed out that Mst. Bhag Bhari filed a suit at Lahore for dissolution of marriage and it was held by the learned Additional Sessions Judge after recording the evidence that the couple did reside in Lahore and thus that judgment was binding on Bahadur Khan and he could not be allowed to wriggle out of this established fact.
9. To meet the above situation it was submitted on behalf of Bahadur Khan that jurisdiction for the purposes of filing a civil suit for dissolution of marriage was different that the one under section 488, Cr. P. C. For claiming maintenance from the Courts of Criminal Jurisdiction.
10. I have given my anxious thought to all the contentions so raised by both the parties and feel convinced that Courts at Lahore had jurisdiction under section 488, Cr. P. C. To deal with the application of Mst. Bhag Bhari for her maintenance, as well as that of her minor child. The sole test on the question of residence is whether a party has animus memendi or an intention to stay for an indefinite period at one place; and if he had such intention, then alone he can be said to reside there for the purpose of section 488, Cr. P. C. In case of Mrs. Jolly v. Mr. Jolly (1) a Bench of Calcutta High Court held in an application by Mrs. Jolly agains their husband under section 488, Cr. P. C.
That:- "the residence of the husband in Calcutta from 16th to the 23rd January, when the application under section 488, Cr. P. C. Was made, was sufficient to give the Presiding Magistrate Court in Calcutta jurisdiction having regard to subsection (8) of section 488, Cr. P. C."
' In view of the above I am in full agreement with the view of the learned Additional Sessions Judge that point of jurisdiction was rightly stood resolved in favour of Mst. Bhag Bhari. I see no force in the argument of the learned counsel for Bhadur Khan in this respect and I reject it as without substance.
11. As regards the failure of Mst. Bhag Bhari to refuse to live with Bahad Khan petitioner despite the decree for restitution of conjugal rights I am o the considered opinion that she was not entitled to maintenance on this ground. It is duty of a Muslim wife to perform her part of the obligation, so ordained by Qur'an and Sunnah and then to claim maintenance if he husband still chooses to neglect her. It was held in Said Badshah v. Mst. Sughran Bib! (2) that husband could refuse to maintain his wife when she refused to live with him. Similarly it was held iu Mahta v. Aye Maung (3) that in ease, wife refused to live with her husband and still claimed the maintenance, a decree for restitution of conjugal rights in favour of the husband was always a good defence to application for maintenance. In view of the law laid down I am in full accord with the learned Additional Sessions
(1) AIR 1918 Cal. 785 (2) PLD 1967 Pesh, 17
(3) AIR 1931 Rang. 111 (1)
' Judge that order directing Bahadur Khan petitioner by the learned Magistrate to pay Rs, 25 as maintenance to Mst. Bhag Bhari was improper and illegal. I accept the recommendation of the learned referring Judge and set aside this order to this extent.
' As regards the subject of allowing maintenance to minor child of Mst. Bhag Bhari born out of the wedlock with Bahadur Khan, I am of the firm view that learned trial Court was fully justified, as well as competent to direct Bahadur Khan petitioner to maintain his minor child. As it is settled law that minor even in custody of mother is liable to be maintained by his father. Reliance is placed on Lal Badshah v. Mst. Saeeda &gum etc. (I), Ghulam Hussain v. Muhammad Aslam and another (2), Maung San Pe v. Ma Lai Mai (3) and Dinsab Kasimsab v. Muhammad Hussain Dinsab and another (4).
13. In view of the above analysis of the entire case, I accept the reference made by the learned Additional Sessions Judge in entirety and set aside the order of the trail Magistrate dated 13-4-1964 qua allowing maintenance to Mst. Bhag Bhari and maintain the same vis-a-vis the maintenance of Rs, 25 allowed in favour of Mst. Zamir Akhtar minor child of Mst. Bhag Bhari.
(1) p L D 1960 Pesh. 88 (2) PLD 1961 Lah. 735
(3) AIR 1932 Rang. 183 (4) AIR 1945 Bom. 390