SHARIF HUSSAIN BOKHARI, J,- In this writ petition the orders passed by the learned Judge Family Courts, respondents No. 1 and 2 whereby the maintenance has been granted to respondents No. 3 4, 5, daughters of the petitioner, have been challenged. It is submitted that on 18.3.1993, the petition for maintenance was submitted by the mother of respondents No. 3 to 5 before the Judge Family Court, Okara, who granted monthly maintenance at the rate of Rs. 350/-, 325/-, 300/- respectively to respondents No. 3,4 and 5 w.e.f. 18.3.1990 i.e. Three years prior to the filing of the suit. The appeal was filed against this order but the same also was rejected by the learned Addl. District Judge, Okara on 16.11.1996.
2. Learned counsel for the petitioner contends that the petitioner was not liable to pay maintenance because on his petition for the custody of the children (respondents No. 3 to 5), the order by the learned Guardian Judge was passed on 20.1.1994 against the mother of the children to hand over their custody to the father which she failed to comply with. He, however, accepts the liability only for a period from 18.3.1993 to 19.1.1994. Thereafter due to the order of the learned Guardian Court, according to him, the petitioner is not liable to pay maintenance. The learned counsel also contends that in any case the past maintenance is not payable by the petitioner under the Muslim Law. He has cited Syed Hamid Ali Shah u. Mst. Razia Sultana (NLR 1991 SD 347), and Mst. Ghulam Fatima v. Sheikh Muhammad Bashir (PLD 1958 (W.P.) Lahore 596) in this behalf.
3. As regards the first contention, the legal position appears to be that as long as the children are in the actual custody of the mother they are entitled to separate maintenance notwithstanding the order of the learned Guardian Court, to hand over the custody to the father. As such the order of the learned Guardian Court does not deprive the children of their maintenance allowance. It was observed in Phakkar v. Mst. Pathani and 2 others (1985 CLC 487) by this Court that it is the "- Absolute duty of father to provide maintenance to his minor children regardless of fact where they stay-". Accordingly, uptil the time the custody is handed over to the petitioner in pursuance of the order of the learned Guardian Judge the children i.e. Respondents No. 3 to 5 are entitled to separate maintenance.
4. Tire second contention that the past maintenance cannot be claimed and the petitioner cannot be made to pay the same is also not correct. With utmost respect I am not persuaded to follow the judgment passed in the cases of. Syed Hamid Ali Shah and Mst. Ghulam Fatima (supra). No doubt the rule of law with regard to the maintenance appears to be that unless the maintenance was previously fixed by agreement by the father or the Court had so directed, the past maintenance cannot-be claimed.
5. The learned D.B. Of this Court in Sardar Muhammad v. Mst. Nasima Bibi and others (PLD 1966 (W.P.) Lahore 703) observed as follows:- "The main argument which formed the basis of the Hanafi view is t hat. Hinda, the wife of Abu Sufian, approached the Holy Prophet (Peace be upon him) complaining about her inadequate maintenance by Abu Sufian, when the Holy Prophet (peace be upon him) allowed her husband much as was sufficient to maintain her ( ). From the absence of any reference to passed Maintenance, it is argued from this that the same stood forfeit ed. This argument is met by the other school of thought by a counter argument that since Hinda never claimed arrears of maintenance, as such, there was no occasion for the Holy Prophet ( peace be upon him) to allow her a relief which was never prayed for -. Another incident on which both sides seem-to have relied in support of their respective views is that. Caliph Hazarat Umar wrote to his army officers in distant countries that the Muslim soldiers who were away from their wives should be ordered either to pay maintenance to their wives or divorce them. It was further directed that in the event of divorce they should also remit arrears to past maintenance. It is not disputed that no exception was taken to his directive of Caliph Umar. The argument of the Hanifit. Es is that the payment of arrears was ordered only in case of divorce and not otherwise. On the contrary it is argued by the other schools of thought that this direction of Caliph Hazarat Umar amounts to a clear dictum in favour of the validity of past maintenance and only in the event of divorce was it insisted that it should be sent alongwith the divorce, and as such, it does not necessarily mean that it stands forfeited if the wife is not divorced. Further support is lent to the latter view from the fact that the competency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi school of thought as is clear from the following heading of the excerpt from Hamilton's Hedaya quoted earlier which reads: "Arrears of maintenance not due unless have been decreed by the Kazee or "
Thus the competency of the Courts of today which have stamped into the shoes of the Kazees for the purposes of adjudication of these matters flows uk a necessary corollary therefrom. The mere fact that a neglected wife has been hesitant is promptly coming to the Court or has been pursuing alternative remedies out. Of Court cannot in all fairness be so construed as to deprive her of the right of maintenance from the day when the cause of action accrued to her. The Courts have thus the jurisdiction to grant such maintenance subject of course to considerations of limitation and the relevant circumstances of each case, and we hold accordingly."
6. In the present case, the learned Courts below have granted maintenance to respondents No. 3 to 5, the daughters of the petitioner, w.e.f. 18.3.1990 i.e.the three years prior to the filing of the application for maintenance, therefore, in view of the above quoted precedents and the judgments of the Hon'ble Supreme Court of Pakistan in Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 SC 302), the same do not appear to suffer from any legal infirmity.
7. Admittedly respondents No. 3 to 5 are still in the custody of the mother notwithstanding the order of the learned Guardian Judge transferring t he custody to the father, the latter is, therefore, liable to pay the maintenance to respondents No. 3 to 5 till their custody is actually handed over to the petitioner.
8. In the light of the above discussion, this petition fails and is accordingly dismissed in limine.