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(a) West Pakistan Family Courts Act (XXXV of 1964)--

---S. 5--Maintenance--Jurisdiction--Minor girl after murder of her mother, allegedly by father, left at mercy of her maternal-grandmother and father failing to discharge his obligation to maintain his minor daughter--Family Court, held, had jurisdiction to award past maintenance in respect of minor--Judgment of Courts below awarding maintenance maintained.

Mst. Ghulam Fatima v. Sheikh Muhammad Bashir P L D 1958 Lah. 596 ref.

Muhammad Yousaf v. Mst. Nafeesa Khatoon and another P L D 1981 Kar. 773 and Bayabai v. Esmail Ahmad A I R 1941 Bom. 369 rel.

(b) Constitution of Pakistan (1973)--

---Art.199--Cottbtltutiotial juriadictlon-Plea urged by petitioner before High Court not raised before Courts below--Plea, held, could not be entertained for first time in constitutional jurisdiction.

Allah Wasaya Malik for Petitioner.

Sh. Naveed Shaheryar for Respondent No. 1.

Date of hearing: 3rd June, 1985.

Mst. Razia, minor respondent, was born out of the petitioner's wedlock with Mst. Aisha, who was murdered and the minor thrown in the lap of her grand-mother namely, Mst. Rasoolan, to be brought by her. After she had been residing with the grand-mother, for a period of six years or so she brought a suit against the petitioner for recovery of maintenance allowance at the rate of Rs.200 per month. It was contested by the latter. The learned Family Court by its judgment, dated 5-7-1980, after appraisal of the evidence of the parties, awarded maintenance to the respondent at the rate of Rs.150 per month for the last three years and so also the future maintenance at the same rate.

2. Aggrieved by the decision of the learned Family Court, the petitioner went in appeal and the learned District Judge scaled down the maintenance from Rs.150 to Rs.100 per month. The verdict of the learned Family Court was upheld in other respects. The learned District Judge's judgment dated 1-7-1981 has been impugned through this writ petition.

3. The only point urged by the learned counsel for the petitioner in support, of the writ petition, is that in law, it was not within the competence of the Courts below to award past maintenance to the respondent. Aid for this submission has been sought from the case of Mst. Ghulam Fatima v. Sheikh Muhammad Bashir P L D 1958 Lah. 596.

4. On the other hand, the learned counsel for the respondent has supported the impugned judgment and decree on the authority of a Division Bench's judgment of the Karachi High Court in Muhammad Yousaf v. Mst. Nafeesa Khatoon and another P L D 1981 Kar. 773 and urged that the Family Court is possessed of jurisdiction to grant past maintenance.

5. In the Lahore Judgment, a learned Single Judge of this Court referred to the opinion of Kania J. in Bayabai v. Esmail Ahmad A I R .1941 Bom. 369 to the effect:-

"Muhammadan Law, like other systems of law, while putting an obligation on the father to maintain his children, gives with it a fight to the father to keep the children in his house, unless according to the-law governing the parties some other person is the lawful guardian of the person of the child."

found the same in consonance with the text books on Hanfi Law and took the view that past maintenance could not be claimed by a minor from his father unless the same was fixed by a Court.

6. On the other hand, in Muhammad Yousaf's case a Division Bench of the Karachi High Court, upheld the Family Court's jurisdiction to grant past maintenance and maintained:-

"In the present case, however, the suit was filed in a Family Court and its jurisdiction admittedly extends to granting a decree for maintenance. The Supreme Court of Pakistan in a case where past maintenance was granted by Arbitration Council under section 9 of the Ordinance VIII of 196: rejected the plea that past maintenance could not be granted on the ground that no such prohibition is contained in section 9 of the said Ordinance. The Family Courts Act is an act pari-materia to Ordinance VIII of 1961 and since under this Act as well no such prohibition is prescribed we are of the view that the Family Court had the jurisdiction to grant redress for past maintenance. In our view the Supreme Court case referred to above is a parallel case which is applicable to the facts and the circumstances of the present case "

7. I am inclined to follow the Karachi view for more than one reasons. In the instant case, the petitioner was accused of murdering the minor's mother. He was tried but acquitted. In the circumstances of the case, presumably, the minor was left at the mercy of her maternal grant-mother. There is ho material on the file to suggest that the latter brought up the minor voluntarily and was not thrusted on leer by the force of the circumstances in which the minor was placed. Further, in the absence of any evidence, it is equally difficult to hold that during the period in question the petitioner was keen to discharge his obligation to maintain the minor himself. On the top of it, the Lahore Judgment primarily rests on the uncodified law but by the enforcement of the Family Courts Act, 1964, the position seems to have changed, a new jurisdiction created and powers conferred on the Family Court to award past maintenance. The instant case is thus, covered by the ratio of the Karachi judgment.

8. It may be added that point now urged on behalf of the petitioner, was not raised by him before any of the Courts below. This would also disuade this Bench to entertain the plea aforesaid for the first time in writ jurisdiction, particularly when the evidence of the circumstances under which past maintenance can be denied to a minor have not been brought on the record through any evidence.

For all these reasons this writ petition is dismissed, leaving the parties to bear their own costs.

M.Y.H.

Petition dismissed.

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