' ASAD MUNIR, J.---Respondent No.1, Mst. Uzma Parveen, who is the daughter of the petitioner, Mian Muhammad Sabir, on 18-10-2008 filed a suit against the petitioner for the recovery of the maintenance allowance at the rate of Rs,10,000/- per month including past maintenance of 5 years. In her plaint, respondent No,1 averred that she is 27 years old and living with her mother who was divorced by the petitioner when respondent No,1 was one year old. It was also averred in the plaint that respondent No,1, being a divorcee with no means of her own, is entitled to be maintained by the petitioner as he is employed in a bank drawing a monthly salary of Rs,50,000/-. The Senior Civil Judge Toba Tek Singh, acting as Family Court, by his judgment and decree dated 27-6-2009 allowed the suit and granted respondent No,1 maintenance allowance of Rs,2000/- per month with effect from the date of institution of the suit till her marriage subject to increase of 10% per annum.
Appeals were filed by the petitioner as well as by respondent No,l. Vide Additional District Judge Toba. Tek Singh's consolidated judgment and decree dated 6-10-2009, the appeal of the petitioner was dismissed while the appeal of respondent No,1 was allowed to the extent that her maintenance allowance was enhanced to Rs,5000/- per month. The present writ petition calls into question the legality and propriety of the impugned judgments allowing maintenance to the petitioner's grownup daughter, respondent No.1.
2. Two main arguments have been advanced by the learned counsel for the petitioner who has, firstly, argued that the respondent No,1 had earlier on 3-7-2004 filed a suit for recovery of maintenance the plaint whereof was rejected vide learned Family Judge/Civil Judge, Kamalia's order dated 7-12-2006 wherefor a second suit was barred by the doctrine of res judicata under section 11, C.P.C. Which is applicable to proceedings before the Family Court. Secondly, it is argued that the petitioner extended full financial support to respondent No,1 and discharged his obligations till her marriage in 1998 when respondent No,1 's right to claim maintenance came to an end and does not stand revived upon the dissolution of her marriage in 2001. Learned counsel has placed reliance on P.K. Pakrichi v. P.K. Kunhacha (ILR Vol.XXXVI Madras 385). In response, learned counsel for the respondent has supported the impugned judgment and while doing so has referred to Arbab Mir Muhammad v. Mst. Iram Iltimas and 4 others PLD 2005 SC 24.
3. I have heard the learned counsel for the parties and have also examined the available record with their assistance.
4. In her earlier suit, filed on 3-7-2004, respondent No,1 made a claim against the petitioner for the recovery of the maintenance allowance at the rate of Rs,10,000/- per month including past maintenance of six years. However, the Family Judge/Civil Judge, Kamalia, by his order dated 7-12- 2006 rejected the plaint on the ground that a Family Court had no jurisdiction to entertain the maintenance claim of a daughter against her father. The controversy in hand arises out of respondent No,l's second suit, filed on 18-10-2008, whereby she claims maintenance allowance at the rate of Rs,10,000/- per month including past maintenance of 5 years. According to the learned counsel for the petitioner, the second suit is barred by the principle of res judicata contained in section 11, Code of Civil Procedure, which has been specifically made applicable to family suits on account of section 17 of the West Pakistan Family Courts Act, 1964. Undoubtedly, section 11, C.P.C., or res judicata applies to family suits but has relevance only where an earlier suit has been adjudicated upon. In the instant case, the plaint in respondent No,l's earlier suit was rejected on the ground that a Family Court has no jurisdiction to entertain a daughter's claim of maintenance against her father. Thus, the earlier suit was not decided on merits but only its plaint was rejected on the technical or preliminary ground of want of jurisdiction. It is settled law that res judicata cannot apply where an earlier suit has not been adjudicated upon on merits. In support, reference may be made to Muhammad Yaqub and 13 others v. The Municipal Committee, Lyallpur (PLI) 1971 Supreme Court 664) and Mst. Parveen Akhtar v. Ghulam Akbar and others (1991 CLC 1393).
5. The earlier suit also contained a different cause of action inasmuch as the maintenance claimed therein included the past maintenance of six years prior to the filing of the suit on 3-7-2004 whereas the second suit claimed maintenance in respect of different period. It must also be said that Judge Family Court's order dated 7-12-2006 was a void order in view of section 5 of the West Pakistan Family Courts Act, 1964, read with item 3 of its Schedule, which gives exclusive jurisdiction to a Family Court to adjudicate upon all claims of maintenance within the family context. All such suits claiming maintenance are family suits which have to be entertained by the Family Court without any exception. There is absolutely no basis to exclude a daughter's claim of maintenance against the father. In this view of the matter, order dated 7-12-2006, being a patently void order, needs to be ignored. As such, the argument that respondent No,l's second suit for recovery of maintenance was barred by res judicata is untenable.
5. The second issue raised in this petition is whether a daughter, having no source of income of her own, can claim maintenance from her father after her marriage has been dissolved. No case-law was cited by either side in support of or against the proposition that a divorced daughter is entitled to claim maintenance from her father. Learned counsel for the petitioner has referred to a Madras High Court's judgment, P.K. Pakrichi v. P.K. Kunhacha supra, wherein the issue involved was not the entitlement of a divorced daughter to claim maintenance from her father but it was a case where the donor filed a suit against his' sister claiming reversion of the property given as a gift for her benefit to her ex-husband, on the ground that the gift became void in consequence of the divorce on account of a local custom or usage. The suit was dismissed as it was found that the parties were governed by Mahommedan Law and not by the local custom or usage. While justifying the retention of property by the sister, it was, inter alia, observed that "A girl when married passes over to her husband's family under the Mahommedan Law. There is no obligation on the members of her natural family to maintain her after her marriage even if she is divorced". This observation cannot be applied in the present case as it refers to the natural family and does not address the issue of a father's obligation to maintain his divorced daughter nor was it made in a case where such an issue was sub judice.
7. It is settled law that a daughter is entitled to receive maintenance regardless of her age till such time she is married. Thus, a father is not exonerated from his liability to maintain his daughter as long as she is unmarried. In support, reference may be made to Muhammad Shaft v. Surrava Begum and 7 others (2000 M LD 2030) and Hafiz-ur-Rehman v. Najma Bano and others (2001 CLC 1273). It will also be of advantage to refer to Syed Ziaul Hassan Gilani v. Mian Khadim Hussain and 7 others (PLD 2001 Lahore 188), wherein it was observed as under:-- ' in case of male child on his attaining the age of majority, the father is not legally responsible for his maintenance but in case of a female, the parents despite attaining age of majority by the female child are still responsible for her maintenance till she is not married. The young girl in Muslim society, even after attaining majority cannot be deprived of their right of maintenance by her parents as they cannot lead an independent life and are always in need of protection of their parents".
8. The rationale for providing maintenance to a Muslim female until her marriage is understandable as in most cases she would need the financial support of her father for having no means of her own. The responsibility of the father continues till his daughter's marriage when it is passed on to her husband, who is under a legal obligation to maintain his wife. However, the obligation of the husband to maintain his wife lasts as long as the marriage is intact with the consequence that upon the m dissolution of the marriage, the husband is no longer liable and has no obligation to maintain his erstwhile spouse. Upon losing her marital status, a female reverts to her status of a single lady who needs financial support in the same manner as she needed it before she was married. Her right to receive maintenance should not be defeated by her marriage no longer in existence. The rationale for providing maintenance to an unmarried lady is equally applicable to a divorced lady as in either case the single lady has no independent source of income. As such, there is no reason to treat a divorced lady differently and deny her the maintenance she is in need of it. I may here refer to Mahommedan Law by Ameer Ali, 5th Edition, at page 1367 wherein it is observed that "marriage does not necessarily absolve the father from the obligation of maintaining his daughter". Again Asaf A..A. Fyzee in his book 'Outline of Muhammadan Law' (IVth Edition) at page 214, states that a "father is bound to maintain his sons until they attain puberty and his daughters until they are married. He is also responsible for the upkeep of his widowed or divorced daughter". In Abdul Rauf and others v. Mrs. Shereen Hassan (PLD 2001 Supreme Court 31), a father sought eviction of his tenant under the Sindh Rented Premises Ordinance, 1979, on the ground of personal requirement of his married daughter. While rejecting the argument that the father had no obligation to provide accommodation to his married daughter, her husband and her children, the honourable Supreme Court observed as under:- "No doubt, after marriage, the daughter passes out of the parents' house and goes to that of the husband. The fact of the marriage does not sever the blood relationship which exists between parents and their daughter. The above relationship gives rise to certain moral obligations and the parents are bound by such obligations to support and maintain their married daughter in case her husband does not afford whereas parents are well-off and can afford"
9. It needs to be seen whether . Or not the daughter claiming maintenance has the means at her disposal to take care of her basic needs. If she is gainfully employed, she would have no right to claim maintenance from her father whose means also need to be kept in view while determining the entitlement of maintenance. In the present case, it is on record that respondent No,1 has no means of her own and is dependent on the financial support of the father as her mother can hardly provide her any maintenance. The income of the petitioner is at least Rs,30,000/- per month as has been noted by the learned Additional District Judge. Some provision had to be made for the petitioner's. Daughter, respondent No,1, who otherwise will not be able to survive in a respectable manner. The blood tie between the petitioner and respondent No,1, being so close, some financial burden has to be placed on the shoulders of the petitioner so that he takes care of his own flesh and blood.
10. I may also refer to the petitioner's statement recorded on 18-6-2009 before the learned Senior Civil Judge, T.T. Singh. Interestingly, the petitioner undertook to provide maintenance to respondent No,1 on the condition that she lived with him but declined to pay her any maintenance if she lived with her mother. Respondent No,1 cannot be denied maintenance only because she is not living with the petitioner. Respondent No,1 has been living with her mother since 1982. There can be no objection if respondent. No,1 is living with her mother as under the law the custody of a female daughter till her marriage belongs to her mother and a father, even though her guardian, cannot complain if she does not live with him.
11 For the foregoing reasons, I find that the impugned judgments and decrees are unexceptionable and no case is made out for intervention by this Court in the exercise of its constitutional jurisdiction. Accordingly, the writ petition is dismissed leaving the parties to bear their own costs.