P L D 1977 Karachi 477 (PLP)

I. MAHMUD, J.‑This constitutional petition calls in question the judgment and decree of the II Additional District Judge. Karaahi, dated 17‑7‑1976, passed on appeal, granting past maintenance to' the respondents, as being without lawful authority and of no legal effect.

2. The petitioner, Shaikh Abdul Karim, was married to the respondent No. 1, Mst. Irshadun‑nisa Begum, on 29‑7‑

56. Respondents 2 to 5 were at the relevant time the minor children of the marriage. In the year 1968, in view of litigation between the parties, the respondent No. 1 left the petitioner's house with the children and went to live with her parents with whom they have been living ever since. In 1974 the petitioner applied for permission to perform second marriage. On 8‑3‑75, the respondent No. 1 filed a suit in the Family Court for maintenance of herself and four children at the rate of Rs. 400 per month, including past maintenance at this rate with effect from 1st December, 1968. This suit was entitled as "suit/application for main tenance under section 488, Cr. P. C. read with section 5 of the West Pakistan Family Courts Act." The suit was resisted by the petitioner, who pleaded that the wife was not entitled to maintenance as she had left him of her own free will with the children. After recording evidence of the parties, the learned Family Judge decreed the respondents' suit and directed the petitioner to pay main tenance to the respondents at the rate of Rs. 250 per month. He also decreed past maintenance at the same rate for a period of three years prior to suit. Being aggrieved by the decree, the petitioner filed appeal to the 11 Additional District Judge. Karachi, but it was dismissed by the impugned judgment dated 17‑7‑1976.

3. The only contention urged before us by Mr. Nizam Ali Khan, learned counsel for the petitioner, is that the decrees for past maintenance pawed by both the lower Courts were patently illegal and therefore without jurisdiction, because according to the counsel, firstly, past maintenance cannot be allowed on an application for maintenance under section 488, Cr. P. C. and, secondly, the order for past maintenance under the Muslim Law was illegal.

4. With regard to the first ground urged by counsel, although the respondents' application for maintenance was entitled under section 488, Cr. P. C. (under which past maintenance cannot be granted), the application was not treated or proceeded with as such, but as a family suit under section 7 of the West Pakistan Family Courts Act, 1964. Therefore there is no force in the first ground urged by the learned counsel.

5. With regard to the second ground relating to pass maintenance under Muslim Law, the claim of the wife end the claim on behalf of the children, have to be considered separately. As far as the claim of the wife for past maintenance is concerned, the matter stands concluded by the decision of their Lordships of the Supreme Court in Muhammad Nawaz v. Mst. Khurshid Begum and others (P L D 1972 S C 302). Their Lordships agreed with the view expressed by a Division Bench of the former High Court of West Pakistan. Lahore in Sardar Muhammad v. Nasima Bibi and other' (P L D 1966 Lab. 703) that past mainte nance can be allowed under the Muslim Law subject to the question of limita tion. A learned Single Judge of the Lahore High Court has applied the above rulings and granted past maintenance in a recent case of Manzoor Ahmed v. Naziran Bibi and others (P L D 1975 Lah. 571). Therefore, no exception can be taken to the A decree passed by both the lower Courts granting past maintenance to the wife for a period of 3 years prior to the date of suit.

6. As far as the claim for past maintenance on behalf of the minor children is concerned, there appears to be some difference of opinion on the question of the father's liability to maintain his minor children. One view, which finds support in a judgment of Sir Abdur Rehman, J. of the Madras High Court in Kachi Muhaidin Tharaqanar v. Sainambu Ammal and others (A I R 1941 Mad. 582), is that the liability is absolute, irrespective of whether the father was entitles to their custody as their guardian. The other view, which finds support in certain rulings of the Bombay High Court discussed in Din Sahib Qasim Sahib v. Muhammad Hussain Sahib and others (A I R 1945 Born. 390) and which view was approv ed by a learned Single Judge of the Lahore High Court in Mst. Ghulam Fatima v. Sh. Mohammad Bashir (P L D 1958 Lah. 596), is to the effect that although the father's obligation is to maintain his minor sons until they attain puberty and his daughter until her marriage, the father may decline to maintain the said children if they refuse to live with him without reasonable cause after he becomes entitled to their custody as their guardian. However, the exponents of both views appear to be agreed that a child having means of its own or who is being voluntarily maintained by another, does not seem to stand in need of food, clothing or lodging and is, therefore, not entitled to claim any maintenance from his father, much less past maintenance.

7. Whichever view is applied to the facts of this case, the petitioner can not escape liability to pay past and future maintenance as ordered in the decree. In the first place. it is not his case that the children have any independent source of income of their own. In the second place, it is also not his case e that his two sons, Javed and Shahid, whose custody he was already entitled to, had without reasonable cause refused to live with him. No such question could arise in the case of his two minor daughters, Farah Naz and Fouzia Naz, then aged 9 and 7 Sears respectively, the custody of whom under the Muslim Law is that of the mother until they attain puberty.

8. For the foregoing reasons, we find no substance in this petition. Accordingly the petition is dismissed with no order as to coats. The fore going are the reasons for the judgment announced) in Court earlier. Applica tion No. C. M. A. 1780/76 is granted as prayed. S. Q‑ Petition dismissed.