' This petition is directed against the order of learned Additional District Judge, Lahore, dated 16-3- 2000 maintaining the judgment and decree of the Trial Court, dated 2-12-1999 whereby the suit for recovery of maintenance allowance of the respondent was decreed at the rate of Rs,1,000 per month.
2. Briefly the facts of the case are that respondent Anwar Hussain minor filed a suit for recovery of maintenance allowance through his mother against the petitioner, the father. He asserted in the plaint that his mother was turned out by the petitioner from his house in the month of January, 1995 and since then she is living along with her parents. Petitioner has not made any effort by reconciliation. The differences became acute and ultimately a decree for dissolution of marriage was obtained on 19-2-1998. Petitioner is bound to maintain him and the statement made by the mother is not binding on the plaintiff. Defendant has sufficient sources to maintain the plaintiff therefore, since January, 1995 and for future prayed for maintenance allowance at the rate of Rs,5,000 per month.
3. Petitioner resisted the suit contending that the mother of the plaintiff has waived his right .Of maintenance through settlement in previous suit and, as such, now she is estopped to claim any maintenance for the plaintiff. She stated that custody of minor will remain with mother and she will not claim any maintenance from defendant, therefore, the suit of the plaintiff is liable to be dismissed as the matter has already been decided and attained finality between the parties. He further asserted that he is jobless and is burden on his father and is unable to pay the maintenance. Learned trial Judge after recording the evidence of the parties and discussing the merits of the case granted maintenance to the respondent at the rate of Rs,1,000 per month from the date of institution of the suit and future till his majority. Petitioner aggrieved against the judgment and decree of the Trial Court preferred an appeal which was dismissed through impugned order, hence the present writ petition.
4. Learned counsel for the petitioner mainly relied upon the statement of mother of respondent in previous suit which reads as under:--- {{URDU TEXT}} ' On the strength of aforesaid compromise learned counsel for the petitioner vehemently argued that the respondent was estopped to file the present suit for maintenance. She had given a clear undertaking to maintain the child herself and will not claim any maintenance from the petitioner. In the presence of aforesaid statement the suit was not maintainable. Both the Courts below failed to apply the effect of aforesaid statement for dismissal of the suit.
5. Learned counsel for the respondent submits that statement of mother of the minor is not binding on him and referred Muhammad Azeem v. List. Bashiran (1995 M LD 1937) (Lahore), Muhammad Riaz v. Mst. Asia Parveen (1997 M LD 142) (Lahore) and Akbar Ali v. Naveed Akbar (1997 CLC 1711) (Lahore) and further argued that the judgments of the Courts below are based on sound reasons and cannot be interfered with the Constitutional jurisdiction.
6. Heard. Record perused. Main ground of the petitioner is previous statement of mother of Anwar Hussain referred above. The relinquishment of right of maintenance of minor by his mother is not binding on the minor. In the case of Akbar Ali (Supra) it was held that in a suit for dissolution of marriage mother of the minor had given statement to relinquish right of maintenance of child would not carry any weight. Such statement could not non-suit minor in a suit for maintenance for in order to get divorce if mother gave statement. That statement could not take away right of maintenance of minor being purely independent right vested in minor to be maintained by father.
Father thus, could not be absolved of his liability to maintain his son.
' In the case of Muhammad Riaz (Supra) agreement between parents of child that husband would divorce his wife after delivery of his child and mother would not demand maintenance for minor child. The maintenance of the child being duty of the father and the minor having a legal right same could not be waived by agreement purportedly entered into by parents.
' In the last case of Muhammad Azeem (supra) in similar circumstances the wife was divorced on condition that she would not claim maintenance for minor daughter. Trial Court dismissed the claim whereas the Appellate Court granted maintenance allowance to each child. The plea of the father that the mother at the time of divorce had agreed not to claim maintenance, therefore, the suit for maintenance was not maintainable was repelled. Minor had a separate legal entity. They could not be deprived of their separate legal right. Father was liable to pay maintenance allowance to the minors. The judgment of the lower Appellate Court was maintained by the High Court.
7. In view of the law laid down in the aforesaid citations it is absolutely clear that wife of petitioner was not competent to waive vested right of maintenance of the minor. The contention of the petitioner on the basis of statement made by his wife in previous proceedings is of no avail to him.
Petitioner is bound to maintain his son irrespective of statement or relinquishment of right of maintenance of the minor by his mother.
8. For the reasons stated above I find no merit in this petition and the same is dismissed with no order as to costs. Respondent is entitled to recover the maintenance awarded by the Courts below subject to adjustment of Rs,10,000 which was paid to the respondent by the petitioner in this Court on 2-6-2000.