1997 PLP 1592 (CLC)

In this writ petition the orders passed by the learned Judge, Family Court, respondents Nos. l and 2 whereby the maintenance has been granted to respondents Nos.3, 4, 5, daughters of the petitioner have been challenged. It is submitted that on 18‑3‑1993 the petition for maintenance was submitted by the mother of respondents Nos. 3 to 5 before the 'Judge, Family Court, Okara, who granted months maintenance at the rate of Rs.35, 325, 300 respectively to respondents Nos.3, 4‑and 5 w.e.f. 18‑3‑1990 i.e. three years prior to the filing of the suit. The appeal was filed against this order but the same also was rejected by the learned Additional District Judge, Okara on 16‑11‑1996.

2. Learned counsel for the petitioner contends that the petitioner was not liable to pay maintenance because on his petition for the custody of the children (respondents Nos.3 to 5), the order by the learned Guardian Judge was passed on 20‑1‑199x1 against the mother of the children to hand over their custody to the father which she failed to comply with. He, however, accepts the liability only for a period from 18‑3‑1993 to 19‑1‑1994, thereafter due to the order of the learned Guardian Court, according to him the petitioner is not liable to pay maintenance, the learned counsel also contends that in any case the past maintenance is not payable by the petitioner under the Muslim law. He has cited Syed Hamid Ali Shah v. Mst. Razia Sultana (1991 CLC 766) and Mst. Ghulam Fatima v. Sheikh Muhammad Bashir (PLD 1958 (WP) Lahore 596) in this behalf.

3. As regards the first contention, the legal position appears to be that as long as the children are in the actual custody of the mother they are entitled to A separate maintenance notwithstanding the order of the learned Guardian Court to hand over the custody to the father. As such the order of the learned Guardian Court does not deprive the children of their maintenance allowance. It was observed in Phakkar v. Mst. Pathani and 2 others (1985 CLC 487) by this Court that it is the‑‑‑Absolute duty of father to provide maintenance to his minor children regardless of fact where they stay‑‑‑". Accordingly, uptil the time the custody is handed over to the petitioner in pursuance of the order of the learned Guardian judge the children i.e. respondents Nos.3 to 5 are entitled to separate maintenance.

4. The second contention that the past maintenance cannot be claimed and petitioner cannot be made to pay the same is, alto not correct. With utmost respect I am not persuaded to follow the judgment passed in the cases of Syed Hamid Ali Shah (1991 CLC 766) and Mst. Ghulam Fatima (PLD 1958 (W.P.) Lah. 596). No doubt the rule of law with regard to the maintenance appears to be that unless the maintenance was previously fixed by agreement by the father or the Court had so directed, the past maintenance cannot be claimed.

5. The learned D.B. of this Court in Sardar Muhammad v. Mst. Nasima 'Bibi and others (PLD 1966 (WP) Lahore 703) observed as follows:‑ "The main argument which formed the basis of the Hanafi view is that Hinda, the wife of Abu Suffian, approached the Holy Prophet (p.b.u.h.) complaining about her inadequate maintenance by Abu Sufian, when the Prophet (p.b.u.h.) allowed her husband so much as was sufficient to maintain her ( ts_Uj_1,y ). From the absence of any reference to past maintenance, it is argued from this that the same stood forfeited. This argument is met by the other school of thought by a counter argument that since Hinda never claimed arrears of maintenance, as such, there was no occasion for the Holy Prophet (p.b.u.h.) to allow her a relief which was never prayed for. Another incident on which both sides seem to have relied in support of their respective views is that Calph Umar wrote to his army officers in distant countries that the Muslim soldiers who were away from their wives should be ordered either to pay maintenance to their wives or divorce them. Ii was further directed that in the event of divorce they should also remit arrears of past maintenance. It is not disputed that no exception was taken to his directive of Caliph Umar. The argument of the Hanifis . is that the payment of arrears was ordered only in case of divorce and not otherwise. On the contrary it is argued by the other schools of though that this direction of Caliph Umar amounts to a clear dictum in favour of the validity of past maintenance and only the event of divorce was it insisted that it should be sent along with the divorce, and as such, it does not necessarily mean that it stands forfeited if the wife is not divorced. Further, support is lent to the latter view from the fact that the competency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi school of thought as is clear from the. following Heading of the except from Hyairiiltion's Hedaya quoted earlier which reads:‑ Arrears of maintenance not due unless have been decreed by the Kazee Thus the competency of the Courts of today which have stapped into the shoes of the Kazees for the purposes of adjudication of these matters flows as a necessary corollary there from. The mere fact that a neglected wife has been hesitant in promptly coming to the Court or has been pursuing alternative remedies our of Court cannot in all fairness be so cosntrued as to deprive her of the right of maintenance from the day when the cause of action accrued to her. The Courts have thus the jurisdiction to grant such maintenance subject of course to considerations of limitation and the relevant circumstances of each case. and we hold accordingly."

6. In the present case, the learned Courts below have granted maintenance to respondents Nos.3 to 5, the daughters of the petitioner, w.e.f. 18‑3‑1990 i.e. three years prior to the filing of the' application for maintenance, therefore, in view of the abovequoted precedents and the judgments of the Hon'ble Supreme Court of Pakistan in Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302), the same do not appear to suffer from any legal infirmity.

7. Admittedly respondents Nos:3 to 5 are still in the custody of the mother notwithstanding the order of the learned Guardian Judge transferring the custody to the father, the latter is, therefore, liable to pay the maintenance to respondents Nos.3 to 5 till their custody is actually handed over to the petitioner.

8. In‑ the light of the above discussion, this petition fails and is accordinglydismissed in limine. A.A./M‑371/L Petition dismissed.