2010 PLP 695 (MLD)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Shayan petitioner calls in question the validity of judgment and decree, dated 29-1-2008 passed by the learned Judge Family Court, Faisalabad and the judgment and decree, dated 13-3-2008 passed by the learned Additional District Judge, Faisalabad and prays that her suit for, maintenance be decreed as prayed for therein.

2. Briefly the facts of the case are that the petitioner being the daughter of respondent No.1 filed a suit for maintenance alleging therein she took birth out of the wedlock of Mst. Shamim alias Shama and Nisarl Ahmad alias Bagga her parents on 27-2-1994 in the house of parents of Mst. Shamim. Respondent No.1 had never seen the face of the petitioner and had also not maintained her. Respondent No.1 had obtained signatures of her mother on some papers on different pretexts and on the basis of those papers he had been blackmailing her mother. She prayed in the suit for a decree of maintenance w.e.f. 30-4-1999 and for future maintenance at the rate of Rs. 6000 per month. The suit was resisted by the respondent by filing a written statement alleging therein that he had divorced mother of the petitioner on 4-9-1994 before a Panchayat in which reconciliation between the parties had failed. It was resolved therein that respondent shall pay an amount of Rs.175,000 to the mother of the petitioner and she will not claim any maintenance for the petitioner and in this respect a divorce deed, agreement deed and receipts were also executed on which mother of the petitioner and her maternal grant parents had also affixed their signatures in addition to other persons. It was also agreed between the parties that the respondent shall not ask for the custody of the petitioner. Out of divergent pleadings of the parties two issues were framed by the learned trial Court on which the parties produced their evidence and ultimately the suit was decreed in favour of the petitioner for recovery of maintenance at the rate of Rs.3000 per month from the date of institution of the suit vide judgment and decree, dated 27-9-2006 by the learned trial Court against which the respondent filed an appeal and the learned Additional District Judge vide judgment and decree, dated 10-5-2007 reduced the rate of maintenance from Rs.3000 to Rs.2000 per month entitling the petitioner for the past maintenance w.e.f. 30-4-1999. Being aggrieved of the said judgment and decree the respondent filed Writ Petition No.5948 of 2007 before this Court which was disposed of vide order, dated 12-9-2007 by remanding the case to the learned trial Court with a direction to decide the matter afresh on available evidence and to resolve controversy taking into consideration the fact as to whether the mother of the petitioner after receiving amount of Rs.1,75,000 in lump sum from the respondent had waived the right of the petitioner to receive maintenance allowance in future. After the remand the learned trial Court framed an additional issue in view of the findings of this Court on which both the parties led their evidence and ultimately the learned trial Court vide judgment and decree, dated 19-1-2008. decreed the suit of the petitioner for maintenance entitling her to receive maintenance allowance at the rate of Rs.2000 per month w.e.f. 30-4-1999 to 30-4-2005 and for future from the date of institution of suit till marriage of the petitioner. Feeling aggrieved form the aforesaid judgment and decree both the parties filed appeals and the learned Additional District Judge, Faisalabad vide judgment and decree, dated 17-3-2008 dismissed the appeal filed by the petitioner and while partly accepting the appeal of the respondent with costs declared the petitioner entitled for the maintenance allowance from the date of institution of the suit at the rate of Rs.2000 per month till the date of her marriage but the claim of the petitioner for the past maintenance allowance was turned down. Hence the present constitutional petition.

3. Learned counsel for the petitioner contends that the impugned judgments and decrees passed by both the learned counsel below are against law and facts and are result of misreading and non-reading of the evidence on record; that both the learned Courts below have given much weight to the documents produced by the respondent which were not proved in accordance with Articles 17 and 79 of the Qanoon-e-Shahadat Order, 1984; that both the learned Courts below have erred in law while fixing the quantum of maintenance of the petitioner in these days of hike prices and that the learned Courts below have also erred in granting past maintenance to the petitioner.

4. The respondent was represented by Ch. Ishtiaq Anwar, Advocate but today despite repeated calls made, either he nor respondent No.1 have entered appearance to oppose this petition, therefore, respondent No.1 is proceeded against ex parte.

5. I have heard the learned counsel for the petitioner and also perused the available record. The grievance of the petitioner in nutshell is that the amount of maintenance fixed by the learned appellate Court is meagre and has not been fixed while keeping in view the needs of the petitioner in these days of hike prices. It is an admitted fact that the petitioner took birth out of the wedlock of 1'vlst. Shamim and Nisar Ahmad, respondent No.1 and under the law the father is bound to maintain his children. Since the petitioner is the daughter of respondent No.1, therefore, under the law he is under an obligation to provide adequate maintenance to his daughter. The claim of the respondent is that the mother of the petitioner in a Panchayat had demanded divorce from him and at the same time the matter regarding custody of respondent was also resolved as a result of which the custody of the petitioner remained with her mother and she had received an amount of Rs.1,75,000 in lump sum as maintenance for the petitioner and in this respect she had executed an agreement, dated Exh.D-1 and receipt Exh.D-2. Leaving aside the question whether the respondent has proved agreement deed Exh.D-1 and receipt Exh.D-2 through reliable and cogent evidence, the question which emerges for determination is whether a mother of the minor can waive the right of maintenance. In this respect I am of the considered view that any agreement by the minor would be void unless Court expressly appoints a guardian or next friend keeping in view the interest of the minor for the execution of such an agreement, as such, the agreement, deed (Exh.D-1) and receipt (Exh.D-2) are not binding on the petitioner. Even otherwise, it is inalienable right of the petitioner to be maintained by her father. Viewed from any angle, the petitioner is entitled to receive the maintenance from her father till her marriage.

6. Now the questions to be considered by this Court are that what should be the rate of maintenance and from which date the petitioner is entitled to recover the maintenance from the respondent. First of all I would like to dilate upon the rate of maintenance and in this respect I have perused the findings of both the learned Courts below. Both the learned Courts below after appreciating the entire evidence on record adduced by both the parties have concurrently held entitled petitioner to receive maintenance at the rate of Rs.2000 per months which to may estimation is fair and reasonable.

7. The other question to be determined by this Court is that from which date the petitioner is entitled to receive the maintenance. It is natural principle of law that father is bound to maintain his children from the date of their birth till their attaining the age of puberty and in the case of daughter till her marriage. Admittedly the petitioner is daughter of the respondent and under the law he is bound to provide maintenance to her daughter till her marriage. Since the petitioner is entitled to receive maintenance from her father, the respondent, therefore, she is entitled for the past maintenance as claimed by her in the suit and the learned appellate Court has erred in affording her maintenance from the date of institution of the suit, as such, the findings of the learned appellate Court regarding past maintenance are reversed and that of the learned trial Court are upheld. Reference in this respect is made to Rasheed Ahmed v. Mst. Shamshad Begum and 3 others 2007 MLD 803.

8. Upshot of the above discussion is that I allow this petition in the terms indicated above. M.U.Y./S-28/L Petition allowed.