1997 PLP 2655 (MLD)

Brief facts giving rise to this Constitutional petition are that Faiz Ahmed, petitioner herein, was married to Mst. Zeban, respondent No.3, in 1980, and out of this wedlock two children namely Shah Faisal, aged 9 years, and Qais Shahbaz, aged 5 years, respondents Nos.4 and 5 respectively, were born. Differences arose between the parties and respondent No.3 left the house of the petitioner in 1989 alongwith minor children, respondents Nos.4 and

5. In 1992, the respondent No‑.3 filed a suit for maintenance claiming Rs.800 per month for herself and Rs.500 per month for each of the minors w.e.f. 15‑12‑1989 to 15‑12‑1992, i.e. the period they had been living away from the petitioner. The suit was decreed in favour of the respondents Nos. 3 to 5, vide judgment dated 6‑1‑1994, passed by the Judge Family Court, Bhalwal, respondent No.2, whereby the granted maintenance allowance at the rate of Rs.800 per month to respondent No.3 and Rs.500 per month to respondents Nos.4 and 5 each payable three years prior to the filing of the suit onward.

2. This judgment was assailed by the petitioner before the Additional District Judge, Bhalwal, respondent No. I, who, vide judgment dated 26‑9‑1994, partly accepted the appeal and disallowed the past maintenance to respondent No.3, on the ground that she had failed to bring on record any evidence to the effect that she was forcibly turned out by the petitioner from his house. The learned appellate Court found her entitled to maintenance only for ' Iddat' period i.e. 3 months at the rate of Rs.800 per month since the petitioner had divorced her during the pendency of the suit. As regards the maintenance for respondents Nos.4 and 5, the judgment and decree of the Family Court was upheld and petitioner was directed to pay past maintenance in respect of the minors for a period of three years prior to the filing of the suit onward at the rate of Rs.500 per month each. The petitioner being aggrieved by the judgment of the respondent No.2, has assailed the same through this Constitutional petition.

3. Learned counsel for the petitioner has contended that both the Courts below exceeded their jurisdiction while granting past maintenance in favour of respondents Nos.4 and

5. He placed reliance on judgments cited as Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302); Syed Hamid Ali Shah v. Mst. Razia Sultana (1991 CLC 766) and Shabbir Ahmed v. Mst Ghulam Sakina and 2 others (1993 CLC 1880), to contend that although father is liable to maintain his children, however, the Judge Family Court cannot award past maintenance under section 20 of the West Pakistan Family Court Act, 1964, since he is only invested with the powers of a Magistrate 1st Class under section 488, Cr.P.C. in which authority has not been given to grant past maintenance.

4. The petition was admitted to consider this point and notice was given to respondents Nos.3 to

5. However, no one has appeared on their behalf, therefore, I proceed to decide the matter after hearing the arguments of the learned counsel for the petitioner.

5. I have examined the three cases cited by the learned counsel for the petitioner. In the first authority, their Lordships of the Hon'ble Supreme Court, have held that arrears of maintenance can be awarded by the Arbitration Council in favour of the wife. No observation has been made in respect of grant of arrears of maintenance to the minors.

6. The other two cases have been decided by Hon'ble Singles Judges of the Lahore and Sindh High Courts, respectively. The judgment of the Sindh High Court does not help the petitioner since in that case it was held that the jurisdiction of the Judges Family Courts to make orders for maintenance under the powers vested in them corresponding to section 488, Cr.P.C., are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief. In this case reliance had been placed on Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), and it was held that minor sons and daughters are entitled to receive recemaintenance from their father if they are living with the mother.

7. The only case which supported the case of the petitioner was 1991 CLC 766 (supra) in which, it had been held by the learned Single Judge of this Court that "past maintenance cannot be recovered from the father by the mother who has maintained the child unless it has become due under either the decree of the Qazi or agreement by the father". The learned Court had set aside the decree of past maintenance granted to the minor children in that case.

8. Subsequent to the above cited judgment, the question as to whether the Family Court can award past maintenance to children, was specifically addressed by the Supreme Court in case Ghulam Nabi v. Muhammad Asghar (PLD 1991 SC 543). The judgments of the Lahore and Sindh High Courts to the effect that past maintenance could not be allowed to minors, were considered by their Lordships of the Supreme Court who observed that "This Court while permitting the grant of past maintenance did not make any exception with regard to children as distinguished from the maintenance to a wife. Otherwise too it looks unfair that while the wife gets past maintenance the children should be deprived of this benefit." Since the law laid down by the Hon'ble Supreme Court is clear and unambiguous, the judgment of the Single Bench of this Court, relied upon by the learned counsel, stands overruled.

9. Even according to Clause 370 of the Principles of Mahomedan Law as stated by Mulla" (1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy section 352 does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances; is bound to maintain her children as the father would be. (3) If the father is poor and infirm, and the mother is also poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances. "

10. In the present case, the petitioner is admittedly the owner of 4 Acres of agricultural land. He also owns some cattle and financially he is in a position to pay the past maintenance as well as the future maintenance of respondents Nos.4 p and 5 at the rate of Rs.500 each per mensem. In view of the above discussion, there is no merit in this petition which is hereby dismissed without any order as to costs. Copies of judgment to be forwarded to the Family Court, Bhalwal, and to respondent No.3 forthwith. A.A./F‑190/L Petition dismissed.