' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a maintenance matter. Muhammad Rafiq, petitioner herein married Mst. Farhat Javaid and out of this wedlock a daughter named Mst. Aniqa Javaid Gul was born on 4th of March, 1980.
Unfortunately marriage ended in dissolution on 21st of May, 1983.
2. On 11th of March, 1986 a suit for recovery of maintenance was filed by respondent No,3 through her mother Mst. Farhat Javaid as next friend. This suit was contested by the petitioner by filing a written statement in which he denied his liability to maintain the minor. It was also pleaded that the petitioner and the mother of the minor had entered into an agreement whereby it was agreed that maintenance at the rate of Rs,300 per month shall be paid by the petitioner, and respondent No,3 could not claim any amount in excess thereof.
3. The learned Judge Family Court after framing the necessary issue recorded the evidence of the parties and held that the petitioner was liable to pay maintenance to his minor daughter at the rate of Rs,600 per month. This judgment and decree of the Judge Family Court dated 25th of April, 1988 was unsuccessfully appealed against by the petitioner as his appeal was dismissed by the Additional District Judge on 26th of February, 1989. Hence this Constitutional petition.
4. Mr. Taqi Ahmad Khan, the learned counsel appearing on behalf of the petitioner has raised the following three contentions:-
(i) That according to the agreement arrived at between the petitioner and the mother of respondent No,3, the petitioner can at the most be directed to pay maintenance at the rate of Rs,300 per month and as such the Courts below have acted illegally in holding that respondent No,3 was entitled to receive maintenance from the petitioner at the rate of Rs,600 per month.
(ii) That according to Hedaya (1982 Edition) page 149, a father is not bound to maintain his minor child unless it is proved that the minor does not possess sufficient means to maintain himself and was in dire need of maintenance. In the present case no such evidence was available.
(iii) That the minor is living in United States of America and as such, the petitioner has no liability to maintain her. Mr. Hafeez Ahmad, the learned counsel for respondent No,3 has been heard in reply.
5. As regards the first contention of the learned counsel, suffice it to say that respondent No,3, who is a minor, was not a party to the agreement entered into between the petitioner and his ex-wife namely Mst. Farhat Javaid. In these circumstances the agreement was not binding on her.
6. On the own showing of the petitioner, during the trial, his monthly income was Rs,5,000 per month. The learned counsel for the petitioner states that he is now earning about Rs,8,000 per month. The grant of maintenance at the rate of Rs,600 cannot therefore, be considered as excessive.
7. As regards the second contention of the learned counsel a perusal of the written statement shows that it was never pleaded that respondent No,3 had sufficient means of her own and was not in need of any maintenance. In these circumstances it is not open to the petitioner to raise any such plea for the first! Time before this Court.
8. So far as the last argument of the learned counsel for the petitioner is concerned, the fact that respondent No,3 is living in United States of America is of no consequence. The petitioner being the father of the minor is liable to maintain her and he is not be relieved of this obligation merely because the minor has gone to the United States. In any case, this plea was never raised in the Courts below and, cannot be allowed to be raised for the first time here.
As a result of what has been stated above there is no force in E this petition and it is dismissed leaving the parties to hear their own costs.