' Dispute arising for deicision in the present constitutional petition pertains to maintenance allowance awarded to minor daughter of the writ petitioner by learned Judge Family Court Toba Tek Singh vide order, dated 30-4-]984, subsequently affirmed in appeal by learned District Judge, Toba Tek Singh on 29-7-1984.
2. Mst. Sheedan Bibi was married to Phakkar, some years ago Mst. Pathani, a minor daughter now aged about 21 years was born out of this lawful wedlock. Strained relations between the spouses led them to file suits. Mst. Sheedan prayed for dissolution of her marriage while Phakkar filed a suit seeking restoration of conjugal rights. Both the suits were consolidated for trial and disposal by the learned Judge Family Court, Toba Tek Singh. Suit for divorce was dismissed while that of restitution of conjugal rights was decreed, on 30-4-1984, by learned Judge Family Court. Decree for restitution of conjugal rights, it seems, has not been put in execution so far. Mst. Sheedan is residing separately from her husband. The minor child Mst. Pathani is also living with her mother separately.
Proceedings for regaining custody of the minor daughter have not so far been initiated by Phakkar, before the proper forum. As a result of this dispute, since mother and daughter both were being neglected, by Phakkar, they filed a suit claiming maintenance, at a certain rate, in the Court of Judge Family Court, Toba Tek Singh. Their claim was seriously resisted. This contest between the parties is reflected in issue No.1 which is as follows:-
(1) Whether the plaintiffs are entitled to the maintenance allowance? If so, how much and for what period? O.P.P.
(2) Relief.
3. Mst. Sheedan was found disentitled to grant of separate maintenance, on account of a decree for restitution of conjugal rights, being in the field against her. As regards the minor's maintenance, the trial Court vide judgment and decree dated 30-4-1984 awarded her maintenance at the rate of Rs.150 p.m., for the past 22 months and also future maintenance at the same rate. Consequently, Mst. Pathani's claim was decreed in her favour. Father of the minor, Phakkar, dis satisfied, with maintenance order, operating in favour of his daughter preferred an appeal before learned District Judge, Toba Tek Singh. In appeal the order as regards the rate of monthly maintenance was maintained. However, minor's entitlement for maintenance for past 22 months was reduced to 12 months, by learned District Judge, in his order, dated 29-7-1984. Petitioner has still remained dissatisfied. He has assailed the correctness and validity of both orders allowing maintenance to Mat. Pathani, his minor duaghter, in constitutional jurisdiction. He has prayed that these two orders be declared to have been passed without jursidcition and without lawful authority.
4. I have heard learned counsel for the petitioner and with his assistance examined the available material. The principal attack directed against both the orders is that the father is a natural guardian and is entitled to the custody of the minor child. He has been making frantic efforts to regain the custody of his minor daughter and to provide her maintenance in case she was handed over to him. Since the stay of the minor with her mother was unauthorised and she was keeping the minor child with her against the wishes of her father, it could not be said, therefore, that the father had either failed or neglected to provide maintenance to the minor child. In the presence of a subsisting decree for restitution of conjugal rights, Mst. Sheedan was not entitled to stay away from her husband, the present petitioner. She was bound to rejoin her husband and also to bring the minor child with her to the place of residence of the present petitioner. Since the mother had no right to live separately, therefore, she had also no right to withhold the custody of the minor child from Phakkar. In this view of the matter learned counsel contended that grant of maintenance allowance to the minor child will put a premium on the conduct of Mst. Sheedan which obviously runs contrary to the terms of the decree operating against her. Learned counsel also contended that the Courts below have not considered the question of right to custody of the minor in these circumstances. He has placed reliance on the case of Hamida Begum v. Mushaf Hussain Shah PLD 1958 SC (Pak.) 284. Learned counsel has also submitted that the monthly rate of maintenance awarded by the Courts below against the petitioner, keeping in view, his sources and means of livelihood was excessive.
5. I have very carefully and anxiously attended to the points raised at the Bar by learned counsel for the petitioner. I, however, do not see any serious merit in either of the two contentions raised by him. It is admitted that the minor child Mst. Pathani was staying with her mother. Both the parties belong to a Sunni Sect. Under this system of law, mother is entitled to retain the custody of minor girl till she reaches the age of puberty. This right of Hizanat is subject to overall control of father who is a natural guardian under Islamic Law. The custody of the minor child cannot be disturbed unless, in a properly constituted proceedings before the competent forum the right of father to regain the custody of the minor child is acknowledged. Admittedly, father has not so far taken any step in that direction. Till such time the mother is deprived of the custody of the minor, the child is entitled to a separate maintenance and cannot be made to suffer because of any right real or unreal, between her parents. It is the absolute duty of father to provide maintenance to his minor children regardless of the fact as to where they are staying. The proposition that father being the natural guardian of his children, there can be no neglect or refusal to maintain on his part if he is willing to maintain them on condition that they come and live with him is subject to the qualification that in a case where the natural guardianship of the father is limited by right of custody of the mother, it is not open to him to insist that he would maintain the child only on condition of his living with him. If a father adopts such an attitude in a case where mother is clearly entitled to Hizanat of minor child it will be a clear case of neglect or refusal to maintain. If the wife has the right to the custody of child, the father is bound to maintain the child, even though the wife may refuse to live with her husband, and may be found disentitled to maintenance on any valid ground including her disobedience to the terms of decree for restitution of conjugal rights. Liability of the father to maintain his child is absolute and is independent of his duty to maintain his counter part. A minor child needs maintenance. He/she cannot be made to suffer on account of squabbles between her parents to which he/she has not contributed at all. To deprive her of maintenance at a time when her need is pressing and genuine tantamounts to punishing her for no fault of hers. After all a person who has fathered a child cannot shirk his responsibility as a father to provide maintenance to him when he is unable to maintain himself. The duty both moral and legal to provide maintenance squarely falls on the shoulders of a father. For acts and neglects of parents, children should not be made to suffer. If the petitioner, father, is dissatisfied with the present custody, nothing debars him to approach the competent Court for settlement of the controversy, but, meanwhile the facts of minor child cannot be left in lurch. Both the Courts below have consciously attended to this obligation of father in regard to maintenance and have arrived at the conclusion that he was bound to provide maintenance to the minor daughter who is till in very early stages of her infancy. Courts have attended to all the material to which their attention was invited. They have neither ignored any piece of evidence nor have misread it. Orders are well- warranted both on facts and in law.
' As regards the rate of maintenance, during these days of costly living when prices of consumer goods have risen very high. I do not think that a sum of Rs.150 for a child like Mst. Pathani can in any manner be described excessive. I, therefore, feel no hesitation in saying that this constitutional petition has no merit to commend. It fails and is dismissed in limine.