ORDER KH. IMTIAZ AHMAD, J.---This writ petition challenges the order of the learned Family Court dated 8-3-2006 whereby the suit of the petitioner for maintenance and recovery of dowry articles was disposed of on the basis of the decision of a Referee and also the order dated 17-5-2006 whereby the appeal was also dismissed.
2. The relevant facts for the disposal of this writ petition are that Mst. Sattaran Begum along with her three minor sons, namely, Muhammad Shakeel, Usama and Talha fmled a suit for maintenance in the year 2003 at the rate of Rs.5,000 p.M. For one past month and for future at the same rate and also for the recovery of dowry articles and in the alternative a decree for Rs.500,000. The claim of the plaintiff was that plaintiff No.1 was married with the defendant on 22-1-1994 and out of the wedlock five children were born, out of which, Muhammad Waseem and Muhammad Shoaib were in the custody of the defendant while Muhammad Shakeel, Usama and Talha were in the custody of the plaintiff. Similarly it was alleged that the parents of the plaintiff had given her dowry articles:
3. The suit was resisted by the defendant who filed the written statement. Out of the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the plaintiffs are entitled to the decree for recovery of maintenance allowance? If so, on what rate and from which period?OPP
(2) Whether the plaintiff No.1 is entitled to the decree for recovery of dowry as per annexed list or in lieu thereof its price of Rs,500.000? OPP
(3) Whether the plaintiffs have no cause of action? OPD
(4) Whether the suit is only filed to harass the defendant? If so, whether the defendant is entitled for special costs? OPD
(5) Relief.
During the pendency of the trial on 11-10-2005 the parties with their counsel were present and both the parties i.e. Mst. Sattaran Begum and Muhammad Muqeem made the statement before the trial Court that there were three suits pending between the parties, one was for maintenance and recovery of dowry articles, the other was the petition for the custody of minors and third was for the recovery of Rs.95,000. Both the parties agreed to appoint Rao Ibad, Ch. Nisar Ahmad and Sufi Muhammad Irshad that whatever they would decide in majority with regard to the said suits that would be acceptable to both the parties and they had appointed these persons as Referees with their free consent. Accordingly in view of the statements of the parties the matter was referred to the above said Referees. All the three Referees appeared in the court on 16-1-2006 and the Referee Rao Ibad Ullah made the statement that to the extent of recovery of dowry articles and maintenance it was decided that Muhammad Muqeem defendant would pay to Mst. Sattaran Begum Rs.1,20,000. Similarly all the minors would remain in the custody of father Muhammad Muqeem and the sum of Rs.12,00,000 which was to be paid by the defendant Rs.95,000 would also be included. Ch. Nisar Ahmad, the second Referee agreed to the statement of Rao Ibad. However, the third Referee Sufi Muhammad Irshad made the statement that as far as the dowry articles were concerned 14 tolas gold was included in it and Rs.95,000 were in cash and that Ch. Nisar Ahmad the other Referee had admitted that defendant would pay Rs.95,000. 14 tolas gold and other dowry articles. He further deposed that with regard to the custody of minors nothing has been decided and it was only decided that the interim maintenance fixed by the court would be paid. This was a divergent statement. The petitioner Mst. Sattaran Begum filed the objection petition contended therein that Rana Ibad and Ch. Nisar Ahmad had informed her that they would not decide the matter but thereafter they got their statement' a recorded. It was further objected that while deciding the fate of minor the Referees had not kept in consideration the welfare of the minors. It was further objected that there was no consent of the minors in the appointment of the Referees and thus it was prayed that the case be decided on merits. The defendant filed a written reply and after hearing the parties the learned trial Court came to the conclusion that the parties themselves had appointed the Referees and passed the decree that the suit for the recovery of dowry articles is decreed to the extent of Rs.1,20,000 and the interim maintenance was paid for the last time on 14-9-2005 and the defendant was directed to pay the interim maintenance till the decision of the court. This order is dated 8-3-2006 meaning thereby that after 8-3-2006 no further maintenance was awarded to the minors. This order was challenged before the appellate court but the appellate court also dismissed the appeal on the grounds that the petitioner Mst. Sattaran Begum herself had appointed the Referee.
4. Learned counsel for the petitioner contends that as far as the maintenance of the minors is concerned, even their mother was not competent to make any compromise or statement against their interest and in fact it was for the court itself who had the parental jurisdiction to keep in mind the welfare of the minors. He contended that the three minors had been deprived from their maintenance and both the courts below had not considered this important aspect of the case. He contends that this appointment of Referee against the interest of the minors itself was illegal and placed Reliance upon "Muhammad Riaz v. Mst. Asia Parveen" 1997 MLD 142), "Nazir Ahmad and others v. Muhammad Qasim and others" and 2004 SCMR 1292 and "Mst. Nasim Khatoon and others v. Syed Irshad Hussain and others" (199 MLD 1321).
5. On the other hand the learned counsel for the respondent opposed the petition and contended that the Referees were appointed by the petitioner Mst. Sattaran Begum herself and she was bound by the said decision of the referees and placed reliance upon "Rao Khalid Anwar Khan and 3 others v. Mst. Zaib-ud-Nisa and 13 others" (1997 CLC 97), "Mushtaq Ahmad v. Muhammad Ismail"
(PLD 2002 Lahore 190) and "Muhammad Arif and others v. Farrukh Hafeez" (KLR 2000 Civil Cases 387 (Lahore).
6. Before discussing the merits of the present case, it is appropriate to go through the judgment cited by the learned counsel for the parties. In a case-law report in "Mst. Nasim Khatoon and others v. Syed Irshad Hussain and others" (1991 MLD 1321 (Lahore) it was observed as under:- "Compromise on behalf of minors-- Effect--Petitioners were minors when earlier execution petition was withdrawn on basis of compromise---Family Court had acted on basis of statement made by minors' mother who was acting as their next friend, without ascertaining whether such compromise was for the benefit of minors---Provisions of Order XXXII, Rule 7, Civil Procedure Code, 1908, though not strictly applicable to proceedings before Family Court, yet salutary principle contained therein, could not have been ignored by the Court---Order of compromise passed by Family Court and the statement made by mother of minors on their behalf could not be construed as rendering decree for maintenance itself as ineffective for all times to come--- Petitioners in earlier execution petition had claimed maintenance for a specific period and on no principle withdrawal of that execution petition could be taken as a bar to maintainability of subsequent execution petition which related to subsequent period---Subsequent execution petition was thus competent--- Fresh execution petition could competently be filed where after compromise, judgment-debtor had failed to maintain decree-holders i.e. Minor children. "
7. In a case-law reported. In Nazir Ahmad and others v. Muhammad Qasim and others" 2004 SCMR 1292 the principle was laid down that there must be some specific reference to the Referees.
8. In a third case reported in "Muhammad Riaz v. Mst. Asia Parveen" (1997 MLD 142 (Lahore)) it was observed as under:- "Suit for maintenance of minor child---Agreement between parents of child that husband would divorce his were after delivery of child and mother would not demand maintenance for minor child---Validity---Right of child of being maintained by his father being independent legal right same could not be waived by agreement purportedly entered by parents of child even before his birth."
9. Thus the perusal of the above said case-law also shows that to the extent of maintenance of the minor the compromise between the parents affecting his right i.e. The minor's right cannot be waived of by agreement. As far as the case-law cited by learned counsel for the respondent is concerned those relate to the civil matter in which the minors were not the parties. In the present case admittedly the mother of the minors agreed for the appointment of Referees but there is absolutely no reference to the Referee that as to on what point they would decide the matter. The maintenance is a vested right of the minor which must be paid by the father and merely on the statement of mother this right cannot be snatched. Both the courts below had not considered this legal aspect of the case while appointing the Referee or while deciding the matter on the basis of the statements of two Referees.
10. Even if for argument sake, the mother herself relinquished the right of minor for maintenance even then the minor is not barred to claim maintenance merely on the ground that her mother had waived this right on his behalf. This is settled principle of law and by no stretch of imagination the rights of the minors could be relinquished on the statement of their mother or father as the case may be. In this way both the courts below had committed illegality by. Merely deciding the matter of maintenance of the minors on the basis of the statement of the Referees.
11. As far as the claim of the dowry articles is concerned, in this claim the minors were not included.
It was Mst. Sattaran Begum herself who agreed to appoint the Referees and made the statement that the majority decision would prevail now she herself cannot go beyond that. Accordingly while allowing this writ petition to the extent of minors wherein their maintenance is involved, I am of the considered opinion that both the 'courts below had committed patent illegality by not awarding them maintenance and in this way the minors have been deprived of their legal right and vested right, so the writ petition to this extent stands accepted and since the parties had not produced any evidence in this behalf so through the present writ petition the quantum of maintenance cannot be fixed. Accordingly the suit for maintenance of minors is remanded back to the learned trial Court with the direction that it should record the evidence on the issues already framed and then to decide the question of maintenance in accordance with the said evidence within three months positively with intimation to this court on day-to-day basis. The writ petition to the extent of recovery of dowry articles stands dismissed..