' The petitioner through this Constitutional petition has prayed for declaration that decrees and judgments dated 21-1-1990 and 10-5-1990 passed by respondents Nos.3 and 4 are without lawful authority and of no legal effect.
2. The relevant facts are that the petitioner and respondent No,1 married together at Lahore on 5- 12-1980. Respondent No, 2, only issue was born on 9-11-1981 out of the said wedlock. Respondents Nos.1 and 2 filed suit for grant of maintenance to respondent No,2 in the Court. The petitioner contested this suit. The learned Judge, Family Court framed issues, recorded the evidence and after hearing the arguments, decreed the suit. Respondent No,2 was allowed maintenance at the rate of Rs,300 P.M with effect from Decemet, 981. The petitioner challenged this order through an appeal before respondent No,4, who dismissed the same vide judgment and decree dated 10-5- 1990. The petitioner has now impugned both these judgments and decrees. The petition was admitted to hearing and notices were issued to the respondents. The respondents Nos.1 and 2 have appeared through their learned counsel and contested the petition while respondents Nos. 3 and 4 were proceeded ex parte.
3. Learned counsel for the petitioner in support of this petition argued that respondents Nos.3 and 4 had no jurisdiction to grant past maintenance for the period from December, 1981 to 11-3-1986, when the suit was filed. It is argued that the decree is against injunction of Islam, therefore, is illegal.
In this behalf learned counsel has placed reliance on the case reported as Mst. Ghulam Fatima v.
Sheikh Muhammad Bashir (PLD 1958 (W.P) Lahore 596). It is added that respondent No,2 is not entitled to future maintenance, because, the petitioner is ready and willing to maintain him and for that purpose he has moved the learned Guardian Judge for the custody of the minor. It is further added that respondent No,1, the mother of respondent No,2 minor child has lost right of `Hazanat.
Therefore, the petitioner is not under any legal obligation to pay maintenance allowance to the minor.
4. On the other hand learned counsel for respondents Nos.1 and 2 has argued that there is no restraint for grant of past maintenance except that of limitation. It is added that the period of limitation is governed under Article 128 of the Limitation Act. Learned counsel in this behalf has referred to the judgment of the Supreme Court in the case of Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302). The arguments are summed up with the submission that it is the duty of every father to maintain the minor children. Learned counsel in this behalf referred to Zafar Iqbal v. Mst. Maqsooda Begum and 2 others (PLD 1989 Supreme Court (AJ &K) 17), Muhammad Ashraf v. Nasreen Begum through Legal Heirs and 3 others (PLD 1989 Lahore 69).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedents relied by them. The suit for maintenance in this case was filed on 11-3-1986 while date of birth of the minor-respondent No,2 is 9-11-1981. Contesting respondents claim maintenance with effect from December, 1981. The argument advanced on behalf of the learned counsel for the petitioner is that past maintenance cannot be allowed. In this behalf he has referred to the judgment of this Court reported as Mst. Ghulam Fatima ibid. It is crystal clear from the report that there is no scope under the Personal Law for the grant of past maintenance. The relevant portion of the judgment reads as under:- "It also seems clear from the authorities on Hanfi Law that neither child nor the person who maintains it can claim past maintenance from the father unless the same has been previously fixed either by a decree the Court or by the father himself. This proposition seems to flow from the propositions mentioned in the preceding paragraph and is support by the exposition of the law relating to maintenance in the textbooks. The Heday (Hamilton's Second Edition, page 149) states:- "Arrear not due in a decreed maintenance. If the Kazee decrees maintenance to children, or to parents, or to relations within the prohibited degree and sometime should elapse without their receiving any, their right to maintenance ceases, because it is due only so far a man suffice, according to their necessity (whence it is not so to those who are opulent), and they being able to suffer a considerable portion of time to pass without demanding or receiving it, it is evident that they have sufficiency, and are under no necessity of seeking a maintenance from others: contrary to where the Kazee decrees a maintenance to a wife and a space of time elapses without her receiving any, for her right to maintenance does not cease on account of her independence, because it is her due. Whether she he rich or poor."
' Unless where it is decreed to be provided upon the absentee's credit.-What has been observed on this occasion applies to cases only in which the Kazee has not authorised the parties to provide themselves maintenance upon the absentee's credit but where he has so authorized them, their right to maintenance does not cease in consequence of length of time passing without their receiving any, because the authority of the Kazee is universal, and hence his order to provide a maintenance upon credit is equal to that of the absentee himself, therefore, the proportion of maintence for the time so elapsed is a debt upon the absentee, and does not cease from that circumstance. The time here meant is any term beyond a month: and if the time elapsed be short of that term, maintenance does not cease."
' These passages clearly lay down that even decreed maintenance, if allowed to remain in arrears for some time, cannot be recovered from a non-absentee father, on the grounds that maintenance is due only when the claimant, other than a wife, is in actual need of it and the fact that it has not been claimed indicates that it was not needed. In the Urdu translation of Durral Mukhtar by Maulvi Khurram Ali (Naval Khishore Press), it is laid down that should there be any dispute between the mother and the father regarding the maintenance of a child the Kazee should fix the amount of maintenance and order the father to pay to the mother until the latter is found guilty of misappropriation. It is further stated that if the father is poor and the mother well off then the latter will be ordered to maintain the child and recover the amount from the father as a debt when he is able to pay it (page 273). At page 460 of Bailie's Muslim Law (Third Impression, 1957.
Premier Book House, Lahore) it is stated when the father is able, but refuses, and the Judge has decreed the maintenance of a child against him, or when, after the decree against him, he abandons the child without having the means of subsistence, and the mother incurs debt under the direction of the Judge, she may have recourse to her husband or it"
' An examination of the authorities leaves no room for doubt that past maintenance--except, perhaps, for a very short period--cannot be recovered from the father by the mother who has maintained a child unless it has become due under either the decree of the Kazee or agreement by the father. In view of this state of the Hanli Law the plaintiff-appellant is not at all entitled to a decree because she had not previously asked a Court to pass a decree for maintenace against the defendant-responent and the latter himself had not agreed to pay any."
6. On the other hand, the judgment of the Supreme Court in Muhammad Nawaz's case relied by the learned counsel for the contesting respondents is not relevant, because, in that case one of the questions was whether under the Muslim Family Laws Ordinance, passed maintenance cannot be allowed. It has arisen from the claim of the wife of maintenance before the Arbitration Council.
While the question for determination here is under Muhammadan Laws past maintenance can be granted to minor children? The learned counsel for the petitioner rightly submitted that under Article 2A of our Constitution the causes are to be decided in accordance with Muslim Law. Learned counsel in this behalf has referred the judgment in case of Messrs Bank of Oman Ltd v. Messrs East Trading Co. Ltd. And others (PLD 1987 Karachi 404). Even in view of the passage of Hedaya at page 142 by Charles Hamilton noted in the case of Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302) the decree of respondents Nos.3 and 4 in support of past maintenance cannot be maintained.
7. Now coming to the future maintenance the application of the petitioner for custody of the, minor is pending before the Guardian Judge. It is within the exclusive jurisdiction of that Court to adjudicate the claim of the petitioner as to custody of the minor and till then the petitioner is bound to provide maintenance to the minor. Therefore, there is nothing wrong with the decree of the maintenance allowance with effect from 11-3-1986.
8. It is clear from the arguments of the learned counsel for the parties that the application filed by the petitioner for the custody of respondent No,2 is pending before Mr. Ijaz Mahmood Chaudhry, learned Guardian Judge, Lahore, for the last many years, the same is fixed for 25-2-1991 and is still on the preliminary stage. In this view of the matter, learned Guardian Judge is directed to decide the application expeditiously in any case before 30-4-1991, even if he is to hold day-to-day proceedings. The report to be submitted to the Registrar of this Court.
9. The upshot of this discussion is that this petition is partly allowed. The decree as to maintenance from December, 1981 upto 11-3-1986 is set aside, while for the remaining part, this Writ Petition is dismissed with no order as to costs.