' KH. IMTIAZ AHMAD, J.--- Through the present writ petition the judgment and decree of the learned Judge Family Court, D.G. Khan dated 25-7-2009 has been challenged whereby the maintenance suit of the plaintiff and the minors was partly decreed and the judgment and decree dated 25-9- 2009 passed by the learned Additional District Judge, D.G. Khan whereby the appeal was also dismissed.
2. The relevant facts for the disposal of this writ petition are that Mst. Naseem Mai along with her two minor children, namely, Mst. Zeenat Mai and Muhammad Faizan filed a suit on 16-7-2008 for maintenance and for the recovery of delivery expenses. The claim of Mst. Naseem Mai was that she was married with the defendant about six years prior to the filing of the suit and out of the wedlock two children, namely, Mst. Zeenat Bibi aged about four years and Muhammad Faizan aged about one month were born which were in the custody of the plaintiff. It was further alleged that in the beginning the conduct of the defendant was cordial and he used to pay maintenance but thereafter he went to Saudi Arabia and left the plaintiff at the house of her parents and thereafter did not pay any maintenance. It was further alleged that about one year prior to the filing of the suit the defendant came back from Saudi Arabia and took plaintiffs Nos,1 and 2 with him to his home but thereafter again went to Saudi Arabia and left the plaintiffs Nos.1 and 2 at the house of parents of plaintiff No,1 and thereafter also did not pay any maintenance and about a month back the plaintiff No,3 was born and all the expenses were borne by the parents of the plaintiff.
3. The suit was resisted by the defendant who filed the written statement in which it was maintained that the marriage between the parties took place about six years back and after one year of the marriage the defendant on 28-10-2003 went back to Saudi Arabia and then he came back to Pakistan on 26-10-2007 and then he came to know that one daughter has born who was at that time aged about three years and the plaintiff No,1 disclosed that she was his daughter and so he was astonished that he was in Saudi Arabia for four years then how this daughter was born and he refused to accept the said daughter upon which plaintiff felt fear and she called her brother and father and thereafter in the absence of the defendant took away the articles from the house of the defendant and when he demanded the articles back the matter was prolonged and then defendant again went to Saudi Arabia and received the information that a son was born and then he again came back on 21-10-2008 and moved. The petition for the registration of the case. It was further maintained in the written statement that both the children were not his children.
4. Out of the pleadings of the parties the learned trial Court framed the following issues:---
1. Whether the plaintiffs are entitled for maintenance, if so then for what period and for what amount and at what rate? OPP
2. Whether the plaintiff No,1 is entitled for the maternity expenses if so, to what extent? OPP 3 . Whether the minors Nos.2 and 3 are not the sons of the defendant, if so its effect? OPD
4. Whether the plaintiff has no cause of action to file the instant suit? OPD
5. Relief.
' The parties produced their evidence consisting of statement of Mst. Naseem Mai as PW-1 and Gul Muhammad, her father as PW-2. On the other hand, Muhammad Ramzan appeared as DW-1 and Ghulam Rasool, the brother in law of defendant appeared as DW-2 and besides this the copy for the registration of the case Exh.D-1, copy of the application for DNA test Exh.D-2, copy of its written reply Exh.D-3, copy of the order dated 12-1-2009 Mark Exh.D-4, copy of Rapt No,33 Exh.D-5; DNA test report Mark-B copy of Passport Exh.D-6 was also produced in evidence. The learned trial Court after hearing the parties decided Issue No,1 on the basis of evidence of the parties and in view of section 340 of Mohammedan Law in favour of the plaintiffs. Issue No,2 was also decided in favour of plaintiffs. Issue No,3 was decided against the defendant. Issue No,4 was not pressed and resultantly decreed the suit of the plaintiffs and awarded maintenance to plaintiff No,1 at the rate of Rs,1000 p.m. From the date of institution of suit till the subsistence of marriage, awarded maintenance to the minors at the rate of Rs,1000 p.m. From the date of institution of suit till the marriage of plaintiff No,2 and the age of majority of plaintiff No,3 with 10% annual increase starting from the date of decision. Rs,2000 maternity expenses were also awarded to the plaintiff No,
1. This judgment and decree is dated 25-7-2009. The defendant preferred an appeal which was also dismissed by the learned Additional District Judge, D.G. Khan vide order dated 25-9-2009.
5. The learned counsel for the petitioner contended that in no way the minors could be born since the petitioner was away from home. He vehemently contended that since the parentage of the minors was involved so the Family Court had no jurisdiction. He contended that DNA test is positive which clearly shows that both the minors are not his cnildren. He placed reliance on the question of jurisdiction upon "Leta Devi v. Kunta Bai and another" (1986 M LD 1483), "Mst. Azlz Begum v. Faiz Muhammad" (PLD 1965 (W.P.) Lahore 399), "Zala Din and another v. Muslim Shah" (PLD 1968 Peshawar 87), "Rehmat Khan and 3 others v. Rehmat Khan and another" (PLD 1991 SC 275), "Lata Devi v. Kunta Bai and another 1986 M LD 1483 and on a principle of Lian.
6. On the other hand, the learned counsel for the respondent supported the impugned judgment and decree of the trial Court.
7: Arguments heard record perused.
8. First of all I will take up the point raised by the learned counsel for the petitioner with regard to the jurisdiction of the Family Court. It is to be noted that in the written statement no such plea was taken by the defendant that the Family Court had no jurisdiction and even before the appellate court this point was not agitated. It is for the first time that in the present writ petition this point has been agitated by the learned counsel for the petitioner. Since this is a legal point so it is appropriate to deal with this point firstly. In this behalf he has placed reliance upon the case law as mentioned above.
9. In a case-law reported in "Zala Din and another v. Muslim Shah" (PLD 1968 Peshawar 87) the facts of the case were that in the said case two persons were claiming to be the father of the minor and it was in this background that it was held that the Guardian Judge cannot answer intricate question of paternity of minor and the question to be decided by the Civil Court alone. However, in the present case no other person is claiming to be the father of the minor so the facts of the said case are quite distinguishable. Same is the case reported in "Lata Devi v. Kunta Bai and another"
1986 MID 1483. In a case reported in "Mst. Aziz Begum v. Faiz Muhammad" (PLD 1965 (W.P.) Lahore 399) the facts were that the father claimed the custody of two girls and the mother of the children denied the Nikah and pleaded that she belonged to the class of prostitutes and Faiz Muhammad, the alleged father, also belonged to the same profession and the children were illegitimate and said Faiz Muhammad merely acted as pimp during the time she carried on her vocation as singer and dancer, he was not entitled to the custody of the children. It was in this background that it was observed that it was the function of the Civil Court to decide the matter and not the Guardian Judge so this case is also not applicable to the proposition in hand. Same is the position of the other cases mentioned by the learned counsel for the petitioner. In the present case it is not denied that the parties were married and so far the divorce has not taken place between the parties. The children were born during the wedlock and in this way the Family Court had the jurisdiction to adjudicate upon the matter. As far as plaintiff No,1 is concerned there is no denial of the fact that so far she has not been divorced. As far as the minors are concerned according to the defendant himself he remained in Pakistan for one year after the marriage and for the first time went to Saudi Arabia on 28-10-2003. This shows that till 28-10-2003 he remained with his wife. In fact both the parties had not produced any documentary evidence with regard to the exact date of birth of the minoRs, In the plaint which was filed on 16-7-2008 it was mentioned that Mst, Zeenat Mai was aged about four years which means that she was probably born in the year 2004. Even in the written statement the defendant alleged that he came back to Pakistan on 26-10-2007 and at that time Mst. Zeenat Mai was aged about three years meaning thereby that he also admits that she was born in the year 2004. According to the defendant himself he left Pakistan on 28-10-2003 and since Mst. Zeenat Mai was born in the year 2004, so in no way it can be presumed that the defendant had no excess since the consummation might have taken place on the last day when he left Pakistan and the birth of Mst. Zeenat Mai in the year 2004 is quite natural. As far as the second minor is concerned, in the plaint it was alleged that he was aged about one month meaning thereby he born in June, 2008. The defendant in his written statement and evidence also admitted that he again came back to Pakistan on 26-72007 and he admitted that he remained with the plaintiff No,1 where he came to know about the birth of daughter and thereafter in his absence the plaintiff No,1 along with the minor daughter left the house. In this way when he remained with the plaintiff No,1 when came back on 267102007 it can safely be presumed that the birth of the minor in June, 2008 was quite natural. Both the courts below had also taken into consideration the evidence that the children and the plaintiff had also gone to Saudi Arabia. All the criminal proceedings initiated by the defendant were after the institution of the suit for maintenance and this clearly shows that the defendant only wants to avoid the maintenance. 1 he marriage still subsists and in this way both the courts below had committed no illegality while awarding maintenance to the minoRs, This being so, this writ petition has no force and same stands dismissed.