1. These two cross-appeals have been filed against the decision of Family Court, Mirpur, dated 29-11- 1997, whereby the appellant Sajid Mehmood contended that he is a jobless and local destitute and has no means of income. He is privately preparing to appear in matriculation examination. The appellant further submitted that his wife is deliberately hesitating to live with him just to grab the money.
2. Mst. Shazia Bano on behalf of Asia Bano minor preferred an appeal against above-mentioned decision of the Family Court, wherein she, contended that she has proved that the respondent Sajid Mehmood has ample source of income, but the lower Court has granted the maintenance of appellant at the rate of rupees 500 per month only which is much lesser as compared to the minor's expenditure. The appellant prayed that maintenance allowance. May be fixed at least at the rate of rupees 1,000 per month.
3. Mr. Nazir Ahmed Gohari, the learned counsel for the appellant, argued that appellant has got no sufficient means of income and he is still a student of Class 10th. He further submitted that maintenance allowance may be fixed at the rate of Rs,300 instead of rupees 500.
4. In reply, Mr. Muhammad Ayub Sabir, the learned counsel for the respondent, contended that appellant Sajid Mehmood is not a student but a tailor. He further submitted that the evidence of the parties disclosed that appellant's income is rupees 200 to 300 per day. He also maintained that the statement of the respondent and her witness has not been challenged in the cross-examination which stands proved. He further submitted that maintenance allowance cannot be awarded more than rupees 500 per month which is correct decision of the lower Court and may not be interfered with.
5. Mr. Muhammad Ayub Sabir, learned counsel for the appellant, Asia Bano, frankly conceded that under section 488, Cr.P.C. Maintenance allowance more than rupees 500 could not be granted in favour of the appellant. I do not agree with this contention because under section 488, Cr.P.C. The maintenance of wives and children could not be fixed more than Rs,400 p.m. Thus, .The decision of the lower Court to this extent is not sustainable and an appeal preferred by Asia Bano is liable to be dismissed.
6. In the light of the above-mentioned legal position, appeal preferred by Sajid Mehmood appellant succeeds to this extent that the lower Court was not legally empowered to make a monthly alimony to the extent of rupees 500 p.m. Now we come to the merits of the case whether the lower Court was justified to pass order of maintenance allowance in favour of respondent Asia Bano minor. The evidence of the party discloses that Asia Bano is admittedly real daughter of the respondent. It also stands proved that the minor is living with her mother, who is also living with her parents. It has been further proved that the respondent does not maintain her minor daughter who happens to be a tailor and his daily income is rupees 200 to 300 per day. It is pertinent to note here that no question in cross-examination was put upon the witnesses of both the parties. Therefore, the chief examination of both the parties is only available for the valuation of the evidence. If we take this position that the respondent has no source of income and he is jobless, even though it is the duty of the father to maintain his minor children because the word "means" used in section 488, Cr.P.C. Does not give this type of interpretation that before issuing an order of maintenance allowance the Court must see the visible means of income or the real property of the father or his definit employment but the only criteria is whether the father has the capacity to earn money of the father is an able-bodied person and c work and earn his livelihood:--- "Therefore, notwithstanding the fact that a husband may be an insolvent or a begger or a minor or is a Sadhu or a monk, he must support his wife so long as he is able-bodied and case eke out his livelihood. AIR 1960 Madras 348 = AIR 1965 Manipur 49."
7. It has been amply proved that the respondent is tailor by profession and sufficient means of income. He is duty bold to maintain her minor daughter. Therefor the order of the lower Court does not call for any interference except that the lower Court was not empowered to make alimony at the rate of rupees 500 p,m., Therefore, according to the facts and circumstances of the case, as discussed above, the maintenance allowance for the mirror responded Asia Bano is fixed at monthly rate of rupees 400.
8. In the light of what has been stated above, the appeal preferred by Asia Bano (minor) fails, which is hereby dismissed. The other appeal filed by Sajid Mehmood succeeds to the extent as indicated above.