Respondent No. 1 was proceeded against ex-parte vide order dated 27.6.2002.
2. On 1.5.2000, the petitioners, who are the ex-wife and children of Respondent No. 1, filed a suit against him for recovery of maintenance. Petitioner No. 1 claimed maintenance at the rate of Rs.
1000/- per month for herself for three years preceding the suit as also Rs. 3000/- for Iddat period while Rs. 1000/- per month per child was claimed for similar period whereas future maintenance was claimed at the rate of Rs. 1500/- per month per child. It was stated in the plaint that the petitioner was married to Respondent No. 1 on 12.3.1990 while Rukhsati took place on 16.8.1991 and out of this wedlock three children were born. She was divorced without any just cause. Respondent No. 2 was stated to be in the service as Squadron Leader in Pakistan Air Force. The respondent filed his written statement stating therein that he is prepared to pay reasonable maintenance to his children but not to his wife. Issues were framed and evidence of the parties was recorded. Vide judgment and decree dated 25.10.2000. Learned trial Court awarded maintenance to Petitioner No. 1 at the rate of Rs. 1000/- per month only for Iddat period whereas the children were awarded maintenance at the rate of Rs. 500/- per month per child with effect from the date of filing the suit.
The respondent was also directed to arrange the education of the children and the incidental charges otherwise to pay Rs. 700/- per month per child. Feeling aggrieved, the petitioner filed a first appeal which was dismissed by a learned Additional District Judge, Attock on 8.5.2001.
3. Learned counsel for the petitioners contends that the maintenance to the petitioners with effect from three years prior to the institution of the suit has been refused vide the impugned orders without lawful authority. According to her the petitioners could not have been denied their lawful right on the ground that earlier suit for the grant of maintenance was withdrawn by Petitioner No. 1.
4. I have gone through the copies of the record. I find that it is an admitted position emergent from the evidence on record that the petitioner stands deserted since the year 1995. The only ground on which previous maintenance has been disallowed is that earlier the petitioners filed a suit for the grant of maintenance 'which was withdrawn on 13.3.2000 and it has been stated that they are debarred from claiming maintenance in view of the said withdrawal. To my mind, in the matter of a civil suit. Order XXIII, Rule 1 CPC lays down that where a suit is withdrawn without permission of the Court to file a suit for fresh cause of action then the second suit on the same cause of action is barred. However, the application of Code of Civil Procedure has been specifically excluded in the matter of family Court's suit vide Section 17 of the Family Courts Act, 1964. This being so there was no bar in law upon the petitioners to seek the said relief which was otherwise available to them. I, therefore, do find that the learned Courts below have acted without jurisdiction in denying the said relief to the petitioners.
5. Writ petition is accordingly allowed and both the impugned judgments and decrees inasmuch as they denied maintenance for a period of three years prior to the institution of the suit are declared to be without lawful authority and are set aside. The result would be that the suit filed by the petitioners on the terms stated in the judgment and decree of the learned Judge Family Court shall stand decreed with effect from the period of three years prior to the institution of the suit with effect from 1.5.1997. No order as to costs.
6. A copy of this judgment be immediately remitted to the learned District Judge Attock, as also to the learned Senior Civil Judge/Judge Family Court, Attock, with a direction to amend the decrees or to prepare fresh decrees in accordance with the terms of this judgment.