Begum Hamida w/o Abdul Hamid
A M Sayem CJ
A B Mahmud Husain J
Ahsanuddin Chowdhury J
Begum Hamida w/o Abdul Hamid………………………….Appellant.
April 24, 1974.
Cases Referred To:
Mst. Sughra Regum vs. Mia Md Din, (1957)9DLR (WP) 37; Kent Vs Kent. ATR 1926 Mad. 59: Tubi Das Vs Sm Soroju Devi. AIR 1933 Cal 406 ;M Bulteel, Vs R C. Bulteel, AIR 1938 Md 721 ; Bai Pravabati Vs. Sumatilal, AIR 1954 Bom 546: Mohammad Ali Vs. Mt Sakina Begum, AIR 1944 Lah. 392.
Aminul Huq, Advocate-on-Record—For the Appellant.
Md. Nurul Huda, Senior Advocate instructed by S.S. Huda, Advocate-on-Record—For the Respondent.
Criminal Appeal No. S-D of 1971.
From the judgment and order of Dacca High Court dated 3t-10 69 passed in Criminal Revision No. 813 of 1968.
Ahsanuddin Chowdhury J.-This appeal by Special Leave is against a judgment of the erstwhile High Court of East Pakistan which set aside an order dated 28-2-68 passed by Mr. M S Ali, Magistrate. 1st Class, Dacca, in Case No. 9064 of 1967 under section 488 of the Code of Criminal Procedure.
2. Short facts leading to this appeal may be put as follows Appellant Begum Hamida was married to the respondent Abdul Hamid in 1952. They led a peaceful and happy conjugal life upto 1958 and during that period they had 4 children. In 1958 the respondent took a second wife against her will, and as a result thereof the appellant could not honourably live with the respondent and she had to shift herself with her children in a separate rented house. She demanded maintenance from the respondent for herself and for her children but the respondent neglected and refused to maintain the appellant and her 4 children. Thereupon, the above mentioned case was filed under section 488 of the Code of Criminal Procedure
3. The application was contested by the respondent and he denied the allegation that he had neglected and refused to maintain Begum Hamida and the four children. He contended that he had constructed a three storied building on his own land and with his own money in the name of Begum Hamida and that she had an income of Rs. 1300/- per month as rent from that building with which she with 4 children could well maintain themselves.
4. The learned Magistrate found upon the evidence aduced in the case that Hamida Begum had her own independent income and that it was possible for her to construct the house with her independent income. According to the Magistrate, however, independent income of the wife was no ground to refuse maintenance to her and to the children. So, he awarded maintenance at the rate of Rs. 100/- per mensem to Begum Hamida and to each of her children. Against this order the respondent moved the Sessions Judge under section 438 of the Code of Criminal Procedure for making a reference to the High Court for quashing the order. The Additional Sessions Judge, Dacca, who heard the parties on the aforesaid application refused to make the reference to the High Court.
The respondent then moved the High Court under section 439 of the Code of Criminal Procedure and obtained a Rule, being Criminal Revision No. 813 of 1968.
5 The High Court took the view that the order of the Magistrate was vitiated by reason of the following defects:—
(1) that the total amount of maintenance awarded was in excess of the total of Rs.400/- allowable by section 488 of the Criminal Procedure Code. ;
(2) that the Magistrate had not recorded any finding that the respondent had neglected or refused to maintain Hamida Begum and her children;
(3) that there was no sufficient reason for Hamida Begum to refuse to live with her husband; and
(4) that she had a monthly income of Rs. 300/-from a house constructed in her name by the respondent.
The Rule was accordingly made absolute and the impugned order was set aside.
6. Against the judgment of the High Court, the appellant sought Special Leave to Appeal from Supreme Court of Pakistan. The said Court having noticed that the view taken by the High Court, Dacca. In this case was contrary to the view taken by the Lahore High Court in Mst Sughra Begum Vs Mia Mohammad Din (1957) 9 DLR (WP) 37= reported in P.L.D 1957 Lah. 441, and also in view of the contention that the High Court, Dacca misinterpreted the orders of the Courts below granted leave in the following terms-
“Since there is a conflict of opinion between the High Courts of East Pakistan and West Pakistan on the interpretation of the words ‘Rs 400 in the whole” occurring in sub-section (1) of section 488 of the Criminal Procedure Code. We “grant leave to appeal in this case to resolve the conflict as also to consider whether the petitioner has any independent income of her own and whether in the circumstances the respondent is absolved from maintaining her and the children born to him from her.”
[In the instant case the High Court held that section 488 of the Code of Criminal Procedure empowers a Magistrate to pass an order awarding a monthly allowance for the maintenance of wife and children not exceeding 400/- ‘in the whole’ but the amount of maintenance granted to Begum Hamida and her four children having exceeded Rs. 400/ the order of the Magistrate has been held to be bad in law. No decision has, however, been referred to in support of this view. In Mst. Sughra Begum Vs Mia Mohammad Din reported in 9 DLR (WP) 37P- P L D 1957 Lahore 441 it was held that the maximum amount provided in sub-section (1) of section 488 of the Code of Criminal Procedure could be allowed as maintenance allowance. In the whole for each of the dependents and no other amount in the shape of medical expenses, clothes etc. should be given. Similar view was taken in Kent Vs Kent reported in AIR 1926 Madras 59; Tulsi Das Vs. Soroju Devi reported in AIR 933 Cal. 406; M Bulteel Vs R C. Bulteel reported in A.I.R. 1938 Madras 721 and Bai-Probhavati Vs Sumatilal reported in A.I.R. 1954 Bombay 546. All these decisions are of the time when the maximum amount that could be awarded as maintenance allowance was Rs.100/-“in the whole”. It has been held in these cases that the expression “in the whole” means, that only one sum of money upto the maximum amount provided in the section may be given as maintenance for each of the dependents and no other amount either in the shape of school fees, medical expenses, clothes or rent of a house, etc. should be given. It thus follows that the expression in the whole’ is intended to prevent tne Court from exceeding the statutory limit in the case of any particular dependent
7. In 1957 the words ‘Rs 400’ were substituted by the Code of Criminal Procedure (Second Amendment) Act for Rs, 100/-We are now to see if Rs 400 ‘in the whole’ is the maximum amount that can be allowed as maintenance for each of the dependents or for all of them whatever be the number. Sub-section (1) of section 488 of the Code of Criminal Procedure reads:
“In any person having sufficient means neglects or refuses, to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person the Magistrate from time to time directs”.
It is to be noted that the word ‘or’ after each of the dependents, namely the wife, the legitimate and the illegitimate child has been used in sub-section (1) of section 488 quoted above. It shows that power is given to make an order for the maintenance of the wife or of the child. So an application can be made for the maintenance of the wife or for maintenance of the child. There is nothing in the section which says that if an application is made on behalf of the wife, no application shall lie on behalf of the child. Now suppose a person has got two wives and children by both the wives and he neglects or refused to maintain one of the wives and her children and she obtains an order for maintenance and gets Rs. 400/-for all of them. If the person afterwards neglects or refuses to maintain the other wife and her children would they be without any maintenance allowance because the maximum amount of Rs. 400/-was already allowed to another wife and her children? Similarly if a person has a wife and children by that wife and also a legitimate child and an application is made under section 488 of the Code of Criminal Procedure by the wife and her children and Rs. 400/- is awarded to them for their maintenance. Thereafter if the illegitimate child files an application for maintenance on the neglect or refusal by the person to maintain such child, the said child would be without any remedy because the sum of Rs. 400/- had already been awarded for the maintenance of the wife and the children from her and no further order can be made for that child, if the Magistrate is said to be empowered to award a sum of Rs. 400/- “in the whole” as maintenance allowance for dependents whom the said person is bound to maintain. It cannot, therefore, be said that the expression ‘Rs.400/- in the whole’ in sub-section (1) of section 488 of the Code of Criminal Procedure is intended to restrict the power of the Magistrate to allow maintenance allowance upto the maximum amount of Rs. 400/- whatever be the number of dependents entitled to maintenance.
8. In our opinion the view taken in Mst Sughra Begum Vs. Mia Mohammad Din reported in 9 DLR (WP) 37 s PLD 1957, Lahore 441 seems to be correct and under sub-section (1) section 488 of the Code of Criminal Procedure the maximum amount as maintenance allowance which each of the dependents can get is ‘Rs. 400/- in the whole’. The expression ‘Rs 400/- in the whole’ means that no other amount exceeding Rs. 400/-should be given in the shape of school fees, medical expenses, clothes, etc.
9. It may, however, be observed that the legislature has not fixed the minimum amount which should be allowed as maintenance allowance for each of the dependents. It has been left to the discretion of the Magistrate to allow maintenance for each of the dependents but in any cases the maintenance allowance shall not exceed Rs. 400/- in the whole for each of them. In every case while granting maintenance allowance the Magistrate will apply his judicial discretion and take into consideration the means of the person ordered to pay maintenance.
10. Next point is whether there is any evidence or finding of neglect or refusal of the respondent upon proof of which maintenance can be claimed by the dependents, namely, the wife and the children. The learned Judg of the High Court has observed that there is no evidence nor any finding of the Magistrate that the respondent neglected or refused to maintain Begum Hamida and the children. It is true that the Magistrate did not record any express finding as regards neglect or refusal of the respondent to maintain Begun Hamida and the children but it is difficult to say that there is no evidence. As many a 5 witnesses were examined to prove the allegation of neglect or refusal to maintain them. It is not disputed that Begum Hamida has been living with her 4 children separately since 1958, i.e., since her husband took second wife of the 4 issues, 2 are sons and 2 are daughters. The first issue is 14 years of age, the 2nd is 13 years of age, the 3rd and 4th are 11 and 10 years of age respectively. The evidence of P. W.1 Begum Hamida that the respondent stopped to give the ”khorposh” (maintenance) from 1960. All the children are school-going and a sum of 7/8 hundred rupees required for their maintenance and educational expenses. She was not cross-examined on the point that the respondent stopped maintenance since 1960. It was put to her that the respondent purchased a land in her name and has built a three-storied house thereon, but she denied that the respondent had constructed the house with his money for her. She, however, stated that she has been getting Rs. 1.000/- as rent from a house and that her husband did it give her any other money to maintain them. P W. 2 Mamunur Rashid is one of the sons. He deposed that his father did not give them any money for their maintenance. P.W.3 another son who deposed to the effect that father did not bear their expenses. P.W. 4 knows the parties since long. He posed that since the second marriage of the respondent, the parties are living separately and the 2nd party (the respondent) did not give any maintenance to Begum Hamida and the children. There was no suggestion that he was not speaking the truth on the question of maintenance. Similar is the evidence of P.W. 5 Abul Ali who also said that the respondent did not give any maintenance to the appellant, meaning Begum Hamida. This evidence shows that there was neglect of the respondent to maintain Begum Hamida and the children. As against this evidence the respondent husband deposed it he spent Rs. 1,50,000/- in constructing three-storied building in the name of the party, namely, Begum Hamida on his own land, that the 1st party gets Rs. 1300/ as rent from the building per month and that he also paid some money to the 1st party whenever demanded. In cross-examination he said that he had submitted no papers for building which is said to have been given to the appellant by him. The case put forward by the respondent that he had constructed the house for the appellant from which she is getting a sum of Rs. 1300/- per month as rent goes to show that he refused pay a money for the maintenance of Begum Hamida and their children.
11. It may be observed that neglect of refusal to maintain, may be express or implied. It may also be inferred from the conduct of the person. To give jurisdiction to a Magistrate it is not necessary to prove express refusal to maintain the wife or the child. In view of the plea which was taken by the respondent in this case and in view of the evidence on record there is no difficulty to hold that there was neglect or refusal of the respondent to maintain his wife, Begum Hamida and the children.
12. Mr. Nurul Huda, the learned counsel for the respondent (husband) contended that the wife is not entitled to maintenance under section 488 as she is living separately from her husband without any reasonable ground and that the second marriage of the husband is no ground for the wife to live away from her husband when the husband is willing to take her and also the children Begum Hamida deposed that she was happy in her conjugal life so long as the second wife was not taken by her husband but after her husband took the second wife, she could not honourably live there due to ill-treatment both by the husband and the co-wife. She suffered both mentally and physically and was forced to take up a separate residence for her with her children. There was no clear denial to the allegations of Begum Hamida that she suffered mental and physical torture and that her husband took a second wife against her will. In view of the circumstances which made it impossible for her to live with her husband and compelled her to have a separate residence for her and her children, her claim for maintenance cannot be refused if the claim is otherwise not unsustainable.
13. Mr. Nurul Huda next contended that Begum Hamida having sufficient income to decently maintain her and her children is not entitled to maintenance under section 488 of the Code of Criminal Procedure despite the proof of neglect or refusal by the respondent to give maintenance. He argued that section 488 provides a speedy remedy against starvation for a destitute wife and children. It is only a summary procedure and does not cover entirely the same ground as the civil liability of a husband under his personal law to maintain his wife and children. He sought to impress upon us that whatever might be the rights of the wife under the Civil Law for maintenance, she is not entitled to a maintenance allowance under the summary procedure more that her bare needs for foods, clothes and lodging. Even according to Begum Hamida, she is getting a sum of Rs. 1100/- per month as rent from a house and this amount is sufficient to keep her and her children from starvation and vagrancy which is the object contemplated under section 488 of the Code of Criminal Procedure. In support of his contention he relied upon Mohammad Ali vs. Mt. Sakina Begum reported in AIR. 1944 Lahore 392. In this case it was found that the wife had private income of Rs. 1800/- only per month. It was held that though that income was far from princely, it was sufficient to keep her from starvation, so maintenance under section 488 was not allowed. In reply to the argument of Mr. Nurul Huda that Begum Hamida is not entitled to maintenance under section 488 of the Code of Criminal Procedure as she has sufficient income to maintain herself, the learned Advocate for Begum Hamida argued that wife’s independent means of support was no ground to deny her right to maintenance from the husband. Section 488 does not provide that the wife having income of her own is not entitled to maintenance from her husband. So the question that the wife is able to maintain herself is immaterial
14. Although section 488 does not speak of anything about the ability or inability of the wife to maintain her, keeping in view the intention of the legislature in providing speedy remedy against starvation for the destitute wife though a summary procedure, we think the wife having a source of income to maintain herself cannot be regarded as one entitled to any relief by way of speedy remedy against starvation which is the object of the provisions of sub-section (1) of section 488 of the Code of Criminal Procedure. So far as the appellant Hamida Begum is concerned, we hold that her claim for maintenance, in the circumstances indicated above, should be disallowed.
15. Now the question which requires consideration is whether the ability of the mother to maintain the children is a ground to refuse maintenance for the children or whether it is the responsibility of the father to maintain the children who are unable to maintain themselves Section 488 of the Code of Criminal Procedure provides that if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate child unable to maintain itself, the Magistrate, may, upon proof of neglect or refusal, order such person to make monthly allowance for the maintenance of such child. We have already noticed that there is neglect or refusal by the respondent as regards maintenance of the four children born of the wed-lock of appellant Begum Hamida and the respondent. The evidence clearly shows that the four children are school going. They have not yet completed their education. They are still unable to earn and to maintain themselves. On the other band their father the respondent, is a person of sufficient means and can provide maintenance for the children and as such there is no reasonable ground for him not to provide them with maintenance. It has already been found that the children are living under the custody of the mother. The father made no attempt to take them into his custody In such circumstances wife’s separate and independent means of support is no ground to refuse maintenance to the children who, under the law, are entitled to be maintained by their father. Similar views have been expressed in Mi Thein vs. Nga Po Nym 15 Cr.L.J. 278, and Baran Shanta Vs. Ma Chan Tha May 26 Cr L.J. 535.
16. In the result the appeal succeeds in part and it is accordingly allowed in part. The order of the High Court setting aside Magistrate’s order as regards the maintenance to the wife is affirmed. But the order so far as it affects the maintenance allowance of the four children is set aside and that of the Magistrate to that extent is restored.
Source : ADC