DINSAB KASIMSAB Vs. MAHAMAD HUSSEN DINSAB

JUDGEMENT

(1.) This second appeal arises out of a suit filed by the minor plaintiffs Mahamed Hussen and Imam Hussen through their mother and next friend Begumbi to recover from their father Dinsab future maintenance at Rs. 4 each per month, together with arrears of maintenance at the same rate from the dates on which they respectively attained the age of seven. The defendant contended that as soon as the plaintiffs attained the age of seven, he became their legal guardian and as such entitled to their custody, and that, therefore, he was not liable to pay separate maintenance to them. The trial Court upheld his contention and dismissed the suit. But in appeal the learned District Judge held that the father's liability to maintain his sons during their minority was absolute and irrespective of his right to have them in his custody, that he was bound to provide them with maintenance wherever they were, and that if he wanted their custody, he should take appropriate steps under the Guardians and Wards Act, 1890. He, therefore, decreed the plaintiffs claim for past and future maintenance until they attained puberty, or were ab1e to earn their livelihood or the defendant lawfully obtained their custody.

(2.) The facts of the case are not disputed in this Court. The plaintiffs mother Begumbi was married to the defendant Dinsab and gave birth to plaintiff No. 1 on August 6, 1925. But she did not pull on well with her husband and about June 1927 she left him and went along with plaintiff No. 1 to live with her parents. She was then five months advanced in pregnancy and gave birth to plaintiff No. 2, on October 2, 1927. She did not go back to her husband, but filed suit No. 858 of 1928 to recover from him Rs. 250 for her mahr, Rs. 50 for the expenses of her delivery and Rs. 200 for the maintenance of herself and her two children from January, 1928. She alleged that she had to leave her husband owing to his ill-treatment and the consequent danger to her life if she continued to live in his house. She, however, failed to prove that allegation, and the trial Court gave her a decree for her mahr only. But in appeal it was held that though she was not justified in living away from her husband, and therefore not entitled to claim her own maintenance from him, she was, under the Mahomedan Law, the legal guardian of her two sons until they attained the age of seven and her husband was bound to maintain them. So the defendant was ordered to pay her Rs. 4 for each of her two sons from January, 1928. Accordingly he paid her at that rate until they reached the ages of seven and then stopped payment. Plaintiff No. 1 attained the age of seven on August 6, 1932, and plaintiff No. 2 on October 2, 1934. They, however, continued to remain in the custody of their mother, even after she ceased to be their legal guardian, and on December 3, 1934, the defendant gave her a registered notice, asking her to hand over the custody of his two sons to him, but she paid no heed to his request and filed this suit as their next friend to recover all the arrears of their maintenance since he stopped payment and future maintenance until they attained majority.

(3.) It is well settled that among the Hanafis mother's hizanat or right of custody of a minor son ends with the completing of his seventh year, so that as soon as he attains that age, his father becomes his legal guardian, and the right to his custody (hizanat) passes from his mother to his father. Irrespective of his right to custody, the responsibility of maintaining his minor children rests primarily) upon the father. He is bound to maintain his sons until they have attained the age of puberty, and his daughters until they are married, so long as he is in a position to do so and the children have no independent means of their own. In other words, so long as the father is not the legal or appointed guardian of his children, and therefore not entitled to their custody, their residence with him is not a condition precedent to his obligation to maintain them : Mahomed Jusab V/s. Haji Adam (1911) I.L.R. 37 Bom. 71 But the position would be different where the father is the guardian and as such entitled to the custody) of his children. In that case he can insist upon their residing with him and refuse to give them separate maintenance, unless it is found that by reason of his cruelty, lunacy, or other adequate reason he is unfit to have the custody of his children. No such ground of the defendant's unfitness is proved in this case, and the defendant has never refused to keep and maintain the minor plaintiffs. He is, therefore, not bound to provide for their separate maintenance.