The petitioner has challenged through instant writ petition the judgment and decree dated 13-6- 1995 passed by the learned Judge Family Court whereby the suit for maintenance was partly decreed in favour of the respondent to the extent that he would be entitled to maintenance allowance @ Rs.300 per month from the date of institution of the suit. Appeal against the said judgment and decree was dismissed vide judgment and decree dated 18-7-1996 passed by the learned Additional District Judge. The only ground advanced by the learned counsel for the petitioner is that instant suit filed by Naveed Akbar through her mother was not competent as he was major and is not entitled to the maintenance.
2.1 have heard the learned counsel for the petitioner and perused the evidence. So far as the age of the minor is concerned it was not rebutted through written statement. In paragraph 3 the petitioner has stated that mother of the minor has given statement relinquishing the maintenance for the minor. P.W.1 is Mst. Naseem Akhtar mother of the minor. She has stated that the minor is deaf and dumb and invalid child and he is 13/14 years of age and he is not maintained by the father- petitioner. In her cross-examination she has stated that she does not know the date of birth of the minor. The petitioner counsel has emphasized that in suit for dissolution of marriage filed by the mother of minor Mst. Naseem Akhtar has disclosed that her Nikah was solemnized with the petitioner/defendant five years prior for the institution of suit for dissolution of marriage and as a result of this wedlock a child was born and he is with the plaintiff. He submitted that the suit was filed on 14-10-1979 while the suit for maintenance was filed on 6-7-1994 meaning thereby the minor is major now. From the perusal of evidence it is nowhere established that - the minor is major. P.W.2 has also supported the statement of P.W.1 that the minor is 13/14 years of age and he is deaf and dumb and is not maintained by the petitioner.
3. Petitioner appeared as D.W.1 and stated that suit for dissolution of marriage was decreed on the basis of compromise and Mst. Naseem Akhtar his ex-wife got the decree on the basis that she will not demand the maintenance of the minor and the minor was handed over to her. He was not allowed to meet the minor. The respondent/plaintiff is deaf and dumb. Lie used to sew quilts and now he is running a merchant shop and is earning Rs.3,000/4,000. He has admitted that he has not maintained the minor for the last 13/ 14 years. He has stated that he is earning Rs.4,000. He produced documentary evidence copy of the suit for dissolution of marriage Exh.D-1, copy of the statement of Mst. Naseem Akhter mother of the minor Exh.D-2, copy of judgment dated 20-11-1980 Exh.D-3 and copy of the decree-sheet Exh.D-4. He has not produced any documentary evidence in respect of the date of birth of the respondent/plaintiff to show that he is major and is not entitled to be maintained by him.
4. I have heard the learned counsel for the petitioner and have gone through the evidence as well as judgments passed by the learned subordinate Courts. I am. Constrained to say that this Court is not convinced by the arguments advanced by the learned counsel for the petitioner that through a compromise-deed the respondent minor's mother has relinquished his right of maintenance. A mother cannot relinquish through a statement the right of a minor to be maintained by the father when she wants her divorce and there the interest of the mother is adverse to that of the minor because father is duty bound to maintain a minor. A minor has his right to be maintained during minority by his father till he attains the age of majority I have carefully perused the evidence and has not found that any better evidence was given by the petitioner to prove that the minor has attained the age of majority. Evidence, otherwise discloses his age to be 13/ 14 years. Although section 488, Cr. P. C has been repealed but still the substantive law of maintenance is there and the Family Laws only regulate the procedure of suit for maintenance. There a minor can apply to be maintained by the father and also can apply for past maintenance for a period of six years. The right to be maintained exclusively vests in a minor who is entitled to be maintained by father during his minority. In the present case minor is admittedly deaf and dumb and he is not a normal child, under such a condition he needs extra care and caution and financial support from his parents and especially from father to take extra care and maintain the child as compared to a child in normal circumstances, therefore, the evidence produced by the petitioner that in a suit for dissolution of marriage the mother has given statement to relinquish the right of maintenance of the child does not carry any force neither it can .Non-suit a minor in a suit for maintenance because in order to get divorce if a mother gave statement that statement cannot take away the right of maintenance of a minor which is purely an independent right and vest in the' minor child to be maintained by his father. Therefore, finding no substance in the instant writ petition the same is dismissed in limine.