' Instant Constitutional petition calls in question the judgment and decree dated 17-9-1992 passed by the learned Additional District Judge, Khanewal whereby he affirmed the judgment and decreed of the learned Judge Fundy Court by which he had decreed the suit of respondents Nos.3 to 6 for recovery of maintenance allowance against the petitioner.
2. Mst. Nasreen Akhtar (Respondent No.3), Jehanzeb Khan, Saima Bibi and Muhammad Ejaz Khan (Respondents Nos.4 to 6) instituted a suit against the petitioner Aurangzeb for recovery of maintenance allowance. The suit was vehemently contested and the learned Judge Family Court framed the following issues, with reference to the pleadings of the parties:-- ' Issues:-
(1) Whether the defendant has divorced the plaintiff No.1? If so, its effect? OPD.
(2) Whether the suit is incompetent in view of preliminary Objection No.2 of the written statement?
OPD.
(3) Whether the plaintiffs are entitled to get maintenance allowance from the defendant? If at what rate and from which period? OPP.
(4) Relief.
3. The parties led evidence in support of their respective assertions. The learned Judge Family Court after going through the same and appreciating the arguments of learned counsel for the parties vide his judgment and decree dated 11-2-1992, decreed the suit in favour of respondents Nos.4 to 6/minor children of the petitioner at the rate of Rs.500 each per month till they attain the age of majority and in favour of respondent No.3/wife of the petitioner till the expiry of her 'Iddat' period. Appeal preferred against the same by the petitioner was also dismissed by the learned Additional District Judge, Khanewal vide hisjudgment and decree dated 17-9-1992, now impugned through the instant Constitutional petition.
4. Learned counsel for the petitioner vehemently argued that the respondent Nos.4 to 6 were not entitled to claim maintenance allowance after the crossing of the age of "Hizanat'. Reference has been made to para 2 of the plaint to assert that at the time of filling the suit for maintenance allowance, respondent Jehanzeb was aged 11/12 years, respondent Saima was aged 9/10 years and respondent Muhammad Ejaz was aged 8 years and as per statement of respondent No,3 (Mst.
Nasreen) as P.W.2, their ages were 15 years, 13 years and 11 years, respectively. In case of a male child, 'a mother has right of "Hizanat" till seven years of age of the child and in case of a female child, it extends to the age of puberty. As per learned counsel, this aspect was neither properly appreciated nor duly weighed by the learned Courts below, thus, the impugned judgments suffer from material irregularity and illegality. Adds that the past maintenance cannot be claimed by the said respondents and at the most maintenance allowance may be awarded from the date of suit and not from the date of alleged non-payment of the said allowance to them. In support of the submissions, learned counsel has referred to, "ILR.6 Cal. 631" (Abdul Fateh Moulvi v. Zabunnessa Khatun), "PLD 1976 AJ&K 9" (Mst. Maryam Bibi and others v. Muhammad Iqbal and others), "PLD 1958 (W.P.) Lah. 596" (Mst. Ghulam Fatima v. Sh. Muhammad Bashir), "PLD 1958 SC 284" (Mst. Hamida Begum v. Syed ME,Shaf Hussain Shah), "PLD 1971 Lah. 151" (Mst. Rehmat Bibi v. Muhammad Ali) and '
"1987 CLC.247" (Muhammad Aslam v. Family Judge and 2 others)".
5. On the other hand, learned counsel for the respondents Nos.3 to 6 vehemently supported the impugned judgments and decrees of the learned Courts below by submitting that the same had been passed strictly in accordance with law and facts.
6. I have given due consideration to the arguments of learned counsel for the parties, perused the record and gone through the judgments cited above.
7. On a Court question, learned counsel for the petitioner was obliged to concede that the suit filed by the petitioner for the custody of the minors was dismissed by the learned Judge Family Court and no efforts were further made to challenge the said decree of the said Court.
8. I have asked the learned counsel for the petitioner as to whether the minors (Respondent Nos.4 to 6) could not claim the maintenance allowance from the petitioner (their father) being the plaintiffs in their independent personal capacity. No satisfactory answer was given. As per Exhs.D.1 to D.3 (Birth Certificates issued by the concerned Union Council), minor Jehanzeb was born on 18-1-1977, minor Saima was born on Q6-10-1978 and minor Muhammad Ejaz was born on 21-1- 1980. Discrepancy, if any with regard to their ages in the statement of Respondent No.3 as P.W.2, is not fatal to the claim of the minors.
9. It has been noticed in a judgment of this Court (1992 MLD 134), "Muhammad Akhtar v. Mst. Shazia and others") with reference to section 5 and Item 3 of the Schedule to the Family Court Act, 1964 that no distinction has been made with regard to the period of maintenance in terms of past or future. In this very judgment, the following judgments have also been relied upon:--
(1) PLD 1972 SC 302 (Muhammad Nawaz v. Mst. Khurshid Begum and others);
(ii) PLD 1966 (W.P.) Lah. 703 (Sardar Muhammad v. Mst. Naseeman Bibi and others) and;
(iii) 1982 CLC 1295 (Bashir Ahmad v. Mst. Abida Bibi).
' Thus, the arguments of learned counsel for the petitioner and the judgments cited by him cannot be advantageously applied to the present set of circumstances.
10. I am convinced that the concurrent judgments of the learned Courts below have been passed on a due appreciation of law and facts and no case has been made out warranting indulgence of this Court in exercise of jurisdiction under Article 199 of the Constitution.
11. Resultantly, instant petition fails and the same is dismissed leaving the parties to bear their own costs.