' The facts necessary for the disposal of this Constitution petition are that a suit for the grant of maintenance allowance was filed by the petitioners, the minor plaintiffs, through their mother, against Muhammad Aslam respondent-defendant, who is statedly father of the plaintiffs, on the plea that they alongwith their mother were thrown out of the house 8-1/2 years prior to the filing of the suit. The date of birth of Iftikhar Hussain is 1-10-1978 while Imtiaz Ahmad petitioner No,2 was born on 27-4-1983. The case of the petitioners was that despite the fact that Muhammad Aslam respondent was earning more than Rs,2,000 per mensem he never bothered to provide any maintenance to them. They, therefore, prayed for the grant of past as well as future maintenance at the rate of Rs,200 per mensem to each of them. The respondent-defendant resisted the suit by raising various preliminary objections as well as by controverting the pleas on merits. He further pleaded that Iftikhar Hussain was his son but Imtiaz Ahmad petitioner No,2 was not his son as his birth admittedly took place after long separation between the parties. It is, however, not disputed that the mother of Imtiaz Ahmad was divorced by pronouncing Talaq on 2-4-1983.
2. The learned Judge Family Court framed the following issue:- "Whether the plaintiffs are entitled to receive maintenance allowance from the defendant, if so at what rate and for which period? OPD."
' The parties produced their evidence and ultimately the learned Judge Family Court vide judgment and decree dated 30-6-1986 granted the prayer holding that both the petitioners-plaintiffs were entitled to receive maintenance allowance at the rate of Rs,200 per mensem for each plaintiff with, effect from 1st February, 1984 uptil date of judgment and in future as well. Muhammad Aslam respondent .Challenged the aforesaid judgment and decree by filing an appeal, which was accepted by the learned District Judge, Sialkot, to the extent of Imtiaz Ahmad petitioner but was dismissed as against Iftikhar Hussain. This led to the filing of the present Constitution petition.
3. Learned counsel argued that the Judge Family Court had no jurisdiction to determine the question of paternity and as such the said question could not be determined by the learned District Judge in appeal against the judgment and decree passed by the learned Judge Family Court. In support reliance was placed on Mst. Aziz Begum v. Faiz Muhammad PLD 1965 (W.P) Lahore 399, Zala Din and another v. Muslim Shah PLD 1968 Peshawar 87 and Lata Devi v. Kunta Bai etc. 1986 M LD 1483.
He added that in any case the finding recorded is ilegal being contrary to the provisions contained in Article 128 of the Qanun-eShahadat, 1984. Learned counsel for the respondent in view of the law laid down in the aforenoted precedents has nothing to urge against the proposition that the Judge Family Court has no jurisdiction to decide the question of legitimacy or the paternity of a child. He, however, relied on the statement of Mst. Kalsoom Akhtar, the real mother of Imtiaz Ahmad petitioner and the decree passed in the suit for restitution of conjugal rights on 3-11-1982 to contend that the question of legitimacy can be urged by the respondent in defence of the claim of A maintenance. There is no merit in this plea. In view of the law declared in the aforenoted precedents, the question of paternity cannot be determined by the Judge, Family Court and as such the learned District Judge in appeal could not have set aside the judgment by returning finding on the question of legitimacy against the petitioners. Even otherwise, the two factors noted by the learned District Judge are not conclusive proof of the plea that Imtiaz Ahmad was not the legitimate son of the respondent. Learned counsel for the respondent did not controvert the proposition that unless there is any declaration of a Court of competent jurisdiction, the liability of the respondent to pay the maintenance of Imtiaz Ahmad petitioner cannot be disputed. I4. It is, therefore, obvious that the learned District Judge acting illegally, arbitrarily and without lawful authority interfered with the judgment and decree dated 30-6-1986 of the learned Judge Family Court to the extent of Imtiaz Ahmad petitioner. The said judgment dated 22-9-1988 of the learned District Judge is hereby quashed with the result that judgment and decree dated 30-6-1986 of the learned Judge, Family Court, shall stand restored. The petition thus succeeds and is hereby accepted. The parties are left to bear their own costs.