2. Through the instant writ petition, the petitioners have called in question the legality and validity of impugned judgment and decree dated 07.07.2014 passed by respondent N o.1/ learned District Judge, Gujrat and prayed for enhancement of maintenance of the petitioners fixed by respondent No.2/learned Judge Family Court, Gujrat vide judgment and decree dated 30.05.2012.
3. Briefly the facts of the case are that petitioners instituted a suit for recovery of maintenance allowance alleging therein that marriage of petitioner No.1 / Kishwar Parveen was solemnized with the respondent No.3/Mukhtar Ahmad on 14.01.2007. The relations were remained strained and defendant left for South Africa and parents of the defendant kicked her out and she was never paid any maintenance allowance. During the pendency of this suit, on 22.06.2011 an amended plaint was filed to the effect that on 25.10.2010 minor son Shavaiz Rehman was born as such minor was impleaded as plaintiff No.2 in the suit and she also claimed birth expenses borne out by her parents of the minor and claimed maintenance allowance at the rate of Rs.20,000/- per month.
The suit was resisted by the respondent No.3 by filing written statement and it was alleged in written statement that he had divorced the petitioner No.1/Kishwar Sultana and he disown paternity of minor Shavaiz Rehman on the ground that Kishwar Parveen eloped with someone and thereafter minor plaintiff was born. Pre-trial reconciliation proceedings declared failed, interim maintenance allowance to the extent of minor was fixed and whereafter following issues were framed:-
1. Whether the plaintiff are entitled to get interim maintenance allowance? If so, at what rate and for what period?OPP.
2. Whether the plaintiff No.2 is entitled to get birth expenses @ Rs.24,750/-? OPP
3. Whether the plaintiff have got no cause of action to file the instant suit? OPD
4. Relief.
4. Thereafter, the defendant / respondent No.3 was proceeded against exparte and after recording of exparte evidence suit was decreed exparte by learned Judge Family Court, Gujrat / respondent No.2 vide judgment and decree dated 30.05.2012 in the terms that both plaintiffs were found entitled to recover maintenance allowance at the rate of Rs.2500/- per month from the date of birth till their legal entitlement alongwith 10% annual increase. Plaintiff No.1 / petitioner No.1 was also found entitled maintenance allowance at the rate of Rs.2500/- per month for her Iddat period only besides she was found entitled to recover delivery expenses of Rs.24750/- as prayed for. The petitioners feeling aggrieved with the said judgment and decree dated 30.05.2012 filed an appeal before the respondent No.1 / District Judge, Gujrat which was disposed of through impugned judgment and decree dated 07.07.2014 and case was remanded to the learned Trial Court, Gujrat for framing of necessary issues with regard to alleged divorce of petitioner No.1 and legitimacy of petitioner No.2.
5. It is contended by learned counsel for the petitioners that impugned judgment and decree dated 07.07.2014 passed by respondent No.1/District Judge, Gujrat with regard to remand of case to learned Trial Court, Gujrat is illegal and unlawful as the question of paternity can only be decided by the civil court and same is liable to be set aside. On the other hand, learned counsel for respondent No.3 supported the impugned judgment and decree.
6. Heard. Record perused.
7. The question of paternity cannot be determined by the Judge Family Court and as such the learned District Judge in appeal could not remand the case to learned Judge Family Court to determine the paternity of the minor. Reliance is placed upon the judgment reported as "Iftikhar Hussain and another v. Muhammad Aslam and others" (1991 M LD 1500).
8. The learned District Judge, Gujrat has exceeded his jurisdiction because he can only exercise jurisdiction vested under Family Courts Act, 1964. The learned Judge Family Court as well as the court of learned District Judge is not a court of civil jurisdiction as understood in Code of Civil Procedure. It is only a civil court which can adjudicate upon the paternity of minor. Reference may be made upon a case reported as "Mst. Aziz Begum v. Faiz Muhammad" (PLD 1965 (WP) Lahore 399).
9. The upshot of the above discussion is that this writ petition is allowed. The impugned order dated 07.07.2014 passed by respondent No.1/District Judge, Gujrat is set aside and the case is remanded to the learned District Judge, Gujrat to decide it afresh in accordance with law leaving the parties to bear their own cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.