West Pakistan Fancily Courts Act (XXXV of 1964)

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2000 Y L R 2550

Before Raja Muhammad Sabir, J

MUHAMMAD SHOAIB---Petitioner

versus

ANWAR HUSSAIN (MINOR) son of Muhammad Shoaib through Mst. Rehana Kausar his
real mother as Guardian ad-litem and 2 others---Respondents

Writ Petition No. 5828 of 2000, heard on 20th June, 2000.

West Pakistan Fancily Courts Act (XXXV of


1964)--
----S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Maintenance of
minor son --- Relinquishment of right of maintenance of minor by his mother---Mother of the
minor was divorced by the father of the minor in lieu of her statement whereby she had forgiven
the maintenance allowance of the minor and of herself---Minor filed suit for maintenance against
his father---Family Court fixed the maintenance allowance for a sum of Rs.1,000 per
month---Appellate Court upheld the allowance fixed by the Family Court-- Contention by father
of the minor was that in view of the statement made by the mother, the minor was not entitled to
maintenance allowance---Validity---Mother of the minor was not competent to waive vested
right of maintenance of the minor---Statement made by the mother of the minor in previous
proceedings was of no avail to him, and the father of the minor was bound to maintain his son
irrespective of the statement or relinquishment of right of maintenance of the minor by his
mother---Minor was entitled to recover the maintenance awarded by the Courts.

Muhammad Azeem v. Mst. Bashiran 1995 MLD 1937; Muhammad Riaz v. Mst. Asia Parveen
1997 MLD 142 and Akbar Ali v. Naveed Akbar 1997 CLC 1711 ref.

Ch. Nisar Ahmad Kausar for Petitioner.

Qazi Misbah-ul-Hassan for Respondents.

Date of hearing: 20th June, 2000.

JUDGMENT
This petition is directed against the order of learned Additional District. Judge, Lahore, dated
16-3-2000, maintaining the judgment and decree of the Trial Court, dated 2-12-1999 whereby
the suit for recovery ,of maintenance allowance of the respondent was decreed at the rate of
Rs.1,000 per month.

2. Briefly the facts of the case are that respondent Anwar Hussain minor filed .a suit for recovery
of maintenance allowance through his mother against the petitioner, the father. He asserted in the
plaint that his mother was turned out by the petitioner from his house in the month of January,
1995 and since then she is living alongwith her parents. Petitioner has not made any effort by
reconciliation. The differences became, acute and ultimately a decree for dissolution of marriage
was obtained on 19-2-1998. Petitioner is bound to maintain him and the statement made by the
mother is not binding on the plaintiff. Defendant has sufficient sources to maintain the plaintiff,
therefore, since January, 1995 and for future prayed for maintenance allowance at the rate of
Rs.5,000 per month.

3. Petitioner resisted the suit contending that the mother of the plaintiff has waived his right of
maintenance, through settlement in previous suit, and, as such, now she is estopped to claim any
maintenance for the plaintiff. She stated that custody of minor will remain with mother and she
will not claim any maintenance from defendant, therefore, the suit of the plaintiff is liable to be
dismissed as the, matter has already been decided and attained finality between the parties. He
further asserted that he is jobless and is burden on his father and is unable to pay the
maintenance. Learned trial Judge after recording the evidence of, the parties and discussing the
merits of the case granted maintenance to the respondent at the rate of Rs.1,000 per month from
the date of institution of the suit and future till his majority. Petitioner aggrieved against the
judgment and decree of the Trial Court preferred an appeal which was dismissed through
impugned order, hence the present writ petition.

4. Learned counsel for the petitioner mainly relied upon the statement of mother of respondent in
previous suit which reads as under:---

On the strength of aforesaid compromise learned counsel for the petitioner vehemently argued
that the respondent was estopped to file the present suit for maintenance. She had given a clear
undertaking to maintain the child herself and will not claim any maintenance from the petitioner.
In the presence of aforesaid statement the suit was not maintainable. Both the Courts below
failed to apply the effect of aforesaid statement for dismissal of the suit.

5. Learned counsel for the respondent submits that statement of mother of the minor is not
binding on him and referred Muhammad Azeem v. Mst. Bashiran (1995 MLD 1937) (Lahore),
Muhammad Riaz v. Mst. Asia Parveen (1997 MLD 142) (Lahore) and Akbar Ali v. Naveed
Akbar (1997 CLC 1711) (Lahore) and further argued that the judgments of the Courts below are
based on sound reasons and cannot be interfered with the Constitutional jurisdiction.

6. Heard. Record perused. Main ground of the petitioner is previous statement of mother of
Anwar Hussain referred above. The relinquishment of right of maintenance of minor by his
mother is not binding on the minor. In the case of Akbar Ali (Supra) it was held that in a suit for
dissolution of marriage mother of the minor had given statement to relinquish right of
maintenance of child would not carry any weight. Such statement could not non-suit minor in a
suit for maintenance for in order to get divorce if mother gave statement. That statement could
not take away right of maintenance of minor being purely independent right vested in minor to
be maintained by father. Father thus, could not be absolved of his liability to maintain his son.

In the case of Muhammad Riaz (Supra) agreement between parents of child that husband would
divorce his wife after delivery of his child and mother would not demand maintenance for minor
child. The maintenance of the child being duty of the father and the minor having a legal right
same could not be waived by , agreement purportedly entered into by parents.

In the last case of Muhammad Azeem (supra) in similar circumstances the wife was divorced on
condition that she would not claim maintenance for minor daughter. Trial Court dismissed the
claim whereas the Appellate Court granted maintenance allowance to each child. The plea of the
father that the mother at the time of divorce had agreed not to claim maintenance, therefore, the
suit for maintenance was not maintainable was repelled. Minor had a separate legal entity.

They could not be deprived of their separate legal right. Father was liable to pay maintenance
allowance to the minors. The judgment of the lower Appellate Court was maintained by the High
Court.

7. In view of the law laid down in the aforesaid citations it is absolutely clear that ~I wife of
petitioner was not competent to waive vested right of maintenance of the minor. The contention
of the petitioner on the basis of statement made by his wife in' previous proceedings is of no
avail to him. Petitioner is bound to maintain his son irrespective of statement or relinquishment
of right of maintenance of the minor by his mother.

8. For the reasons stated above I find no merit in this petition and the same is dismissed with no
order as to costs. Respondent is entitled to recover the maintenance awarded by the Courts below
subject to adjustment of Rs.10,000 which was paid to the respondent by the petitioner in this
Court on 2-6-2000.

Q. M. H. /M. A. K. /M-247/L

Petition dismissed.

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