The obligation of a husband to pay maintenance to his wife and the entitlement of a wife to claim maintenance are statutory rights under Section 488 Cr. P. C. These rights are not affected by customary practices or the status of the wife as a Khana Nishin daughter.

1. There has been a conflict of judicial opinion in this court about the obligation of a Khana Damad to pay maintenance to his wife and right of a Khana Nisheen daughter, to claim maintenance from her husband. Rasool Soofi vs. Mst. Asha Bibi, 38, P. L. R. J&K 104 is a Division Bench authority of this court, which has held that Khana Damad was not liable to pay maintenance to his wife and wife was not entitled to claim it on breach of condition. Breach of condition was that Khana Damad had left the house of his wifes parents. On the other hand Mohammad Ramzan Dar vs. Mst. Hameeda, 1977 JK LR 170 and Mst. Mughli Vs. Mohammad Parrey, 1977 JK LR 559 decided by two learned Single Judges of this court took a different view. They held that wife was entitled to claim maintenance notwithstanding the fact that 7he was Khana Nisheen daughter. The matter, therefore, came to be referred by Farooqi Chief Justice to the Full Bench for resolving the controversy, He, however, referred the whole case to the Full Bench but we desire to" decide only the obligation or otherwise of the husband to pay maintenance and entitlement or otherwise of the Khana Nishen daughter to claim maintenance from her husband. After that, the- case s-all be put up before any available Single Bench for decision on merits because appreciation of evidence and the validity of the order of the court below shall have to be considered by it and not by the Full Bench.

2. Right to seek maintenance by the wife from her husband, whether Hindu or Muslim, is a statutory right. This right is guaranteed u/s 488 Cr. Pr. Code which reads as under so far as it concern this point:

(1) If any person having sufficient means neglects or refuse to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial 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 rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

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(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.

3. From the perusal of the aforesaid statutory provisions, it would be clear that a husband is under an obligation to pay maintenance to his wife if the wife is entitled to get it on the basis of the statute. The statute disentitles her to receive maintenance if there are grounds for the same. Mere custom by which a husband is required to live in the wifes parents house can certainly not be a good ground for refusal to pay maintenance. If the husband is thrown out from the house of the wifes parent and is not allowed entry into the house if maintenance is claimed by the wife against him in such circumstances, the husband may claim wife to live with him even outside her parental house and on her refusal to do so court will positively go into the genuineness or otherwise of the wifes refusal to live with her husband outside her fathers house. By custom right to get maintenance is not destroyed because that is a statutory right. Each case shall have to be determined on its own facts.

4. On the other hand if the husband refuses or neglects to maintain his wife and deserts her and the wife is compelled to claim maintenance, it would not lie in the mouth of the husband to say that because his wife is Khana Nisheen daughter, therefore, he is discharged from discharging his obligation. He will be bound to pay maintenance to the wife and the liability to pay maintenance to the wife will be enforced by the court notwithstanding the fact that the wife was made a Khana Nisheen daughter. Incident of making a daught