1991CLC784 (PLP)

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan,1973 arises out of a suit for maintenance filed by petitioner No.1 against respondent No.l who was her husband claiming maintenance for herself and for 3 minor children. The suit was resisted by respondent No.l by filing a written statement which led to the framing of following four issues:‑-- (1) Whether the defendant has been treating the plaintiff habitually with cruelty? . (2) Whether the defendant leads his life against the Injunctions of Islam? (3) Whether the defendant has not paid maintenance to the plaintiff and her children. If so what is the period of non‑maintenance? (4) Relief.

2. The Family Court on 12th September, 1981 decreed the suit. So far as the petitioner wife was concerned respondent No.l was directed to ' pay maintenance to her at the rate of Rs.100 for the period of Iddat as she had been divorced during the pendency of the suit. As regards the maintenance for children was concerned it was rejected on the ground that they were not parties to the suit. The decree of the Family Court was affirmed in appeal by the Additional District Judge on 11th July, 1982.

3. Sh. Zahoor‑ul‑Haq, learned counsel for the petitioners has challenged the refusal of the Courts below to grant maintenance for the children on the sole ground that they were not parties to the suit. According to the learned counsel, it was specifically alleged in the plaint that the minors were residing with their mother and were entitled to receive maintenance from their father. Mr. Talaat Farooq Sheikh, learned counsel for the respondents, has on the other hand, argued that since the minors were not parties to the suit, no maintenance could be granted for them. The learned counsel objected that the suit was bad for non‑joinder of the necessary parties.

4. In the suit riled by the petitioner No.1, she specifically claimed maintenance for herself as also the three minor children. Though it is correct that the minors were not impleaded as parties in the suit but it was specifically averred that they were living with petitioner No.1 and the respondent was bound to maintain them. In the written statement riled by respondent No.1 there was no objection that the minors should have been impleaded as parties. It is well settled that an objection as to non‑joinder of the parties must be raised in the written statement and in any case before the settlement of the issues. The two Courts below were, therefore, clearly in error in non‑suiting the petitioners.

5. Even otherwise as the children for whom maintenance was claimed were admittedly minors and were living with petitioner No.1 and were being maintained by her, she can claim maintenance on behalf of her children. It was not necessary that they should also have been parties in the proceedings. As a result of what has been stated above, this petition is accepted, the impugned judgments and decrees of both the Courts below are declared to be without lawful authority and of no legal effect with the result that the suit for maintenance riled by the petitioner shall be deemed to be pending before the Family Court Lahore and shall be decided afresh. As the matter relates to maintenance of minors, the suit is entrusted to the Court of Senior Civil Judge, Lahore as Judge Family Court who shall decide within one month if necessary by holding day‑to‑day proceedings. The parties shall appear before the Senior Civil Judge, Lahore on 18th March, 1991. H.B.T./M‑2680/L Petition accepted.