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Writ Petition No. 194 of 1986, decided on 26th April, 1986.

‑‑ S. 5‑Maintenance of children‑Father is bound to maintain his sons until age of puberty while daughters would have to be main tained by him until their marriage‑So long as children were with mother and unless custody thereof, was disturbed as result of proper legal proceedings, liability of father to provide adequate maintenance, held, would be absolute and was not dependent or affected by their residence.

Principles of Muhammadan. Law by D. F. Mulla rel.

‑‑ S. 5‑Maintenance‑Quantum of ‑Where amount awarded as maintenance to minor children was hardly sufficient to provide bare sustenance to a human being, such amount, held, could not be urged to be excessive.

‑‑ S. 11(3)‑‑Affidavit in evidence‑Validity of‑Besides oral examina tion of witnesses, Family Court is empowered to permit evidence of any witness to be given by means of affidavit‑Family Court, held, would not commit illegality or breach of procedural law by relying on affidavit evidence.‑[Affidavit].

Shirin Masood v. Malik Nasim Hassan 1985 C L C 2758 rel.

‑‑ Art. 199‑West Pakistan Family Courts Act (XXXV of 1964), S. 7 & Sched. ‑ Constitutional jurisdiction, exercise of ‑ Where orders of Court proceed on correct premises and could not be charac terized as either illegal or without jurisdiction, High Court, held, would decline interference in constitutional jurisdiction.

Muhammad Munir Peracha for Petitioner.

This application under Article 199 of the Constitution by Khalid Mahmood, petitioner, is against order, dated 16‑3‑1986 of District Judge, Jhelum and arises in the facts and circumstances given below.

Mst. Imtiaz Begum was married to petitioner. Out of this union, Mst. Imtiaz Begum gave birth to four daughters namely, Mumtaz Kausar, Robina Khalid, Farah Deeba and Tubassam Khalid. Imtiaz Begum on her own behalf and for the minor children brought a claim of maintenance against petitioner before the Family Court at Jhelum. In the suit, it was alleged that Khalid Mahmood had deserted the plaintiffs and had failed to provide adequate maintenance to them: Maintenance at the rate of Rs. 500 for each plaintiff was claimed. Khalid Mahmood contested the suit and denied his liability to maintain the plaintiffs. Learned Judge, Family Court, allowed maintenance to Farah Deeba and Tubassam Khalid only at the rate of Rs. 400 payable from the date of the suit. As regards the other plaintiffs, their claim was dismissed. Learned Family Judge was of the opinion that Mumtaz Kausar and Robina Khalid bad attained puberty, and, therefore, were not entitled to claim maintenance. As regards Imtiaz Begum, Court held that she had already been divorced and was not entitled to be maintained by Khalid Mahmood. Petitioner appealed to learned District Judge, Jhelum to have him exonerated from the liability of providing maintenance to the minor daughters as also reduction in the monthly rate. Learned District Judge, in his order, dated 16‑3‑1986, reduced the monthly rate of maintenance from Rs. 400 to Rs. 250. Except for the above modification, the order of Family Judge was main tained. Aggrieved of the decision given in appeal, petitioner has invoked constitutional jurisdiction of this Court. Mr. Muhammad Munir Peracha, learn6d counsel for the petitioner submitted that the minor daughters were not entitled to maintenance and that rate of maintenance awarded per month was also excessive and was beyond the resources possessed by the petitioner. Learned counsel also contended that the Courts below were wrong to base their findings on affidavit‑evidence.

It is not in dispute that the daughters, both major and minors, were in the custody of Imtiaz Begum their mother. It is also not in dispute that Mumtaz Kausar and Robina Khalid have not so far been married though they have already attained puberty. No legal steps have been taken by Khalid Mahmood to have custody of the minors restored to him. In para. 370 of the Principles of Muhammadan Law by D. F. Mulla, it is provided that a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until their marriage. Therefore, so long as the children were with the mother, and unless this custody was disturbed in the result of proper legal proceedings, liability of father to provide them adequate maintenance was absolute and was not dependant or affected by their residence. He cannot be heard to say that unless the custody of children was handed over to him. he is not bound to provide them maintenance. In the circumstances, in my opinion, father was duty bound to provide maintenance to the minor daughters and they could not be made to suffer in the result of strained relations between their parents. Admittedly, petitioner had taken second wife and has also children from her. Imtiaz Begum was not wrong in claiming maintenance for the minor children and the Courts below were also correct in awarding them maintenance. As regards the plea that maintenance was awarded at excessive rate, suffice it to observe that these days when the. prices of consumer goods are sky high, a sum of Rs. 250 per month could hardly provide bare sustenance to a human being. I do not think by what standard, it could be urged that Rs. 250 were excessive. Looking to the ages of minors, the amount awarded to them can hardly sustain them and father should not be slow in doling out the maintenance at this rate to his own children. As regards affidavit‑evidence, learned counsel conceded that not only the plaintiffs) but defendant also relied on such evidence. This course was adopted with the tacit consent of the parties to the proceedings. Manner of recording of evidence in Family Court's cases is provided in section 11 of the Family Courts Act, 1964. It provides for oral examination of the witnesses. However, Family Court has been given power to permit the evidence of any witness to be given by means of an affidavit and it has also the power if it deems fit to call such a witness for purposes of further examination as given in subsection (3) of section 11 of the Act. It is not the case of either party that it requested the Court to exercise its powers under proviso to subsection (4) of section 11 of the Act. Therefore, it cannot be urged that the Family Court committed an illegality or breach of some procedural law when it relied on affidavit‑evidence. Contention, therefore, is found to be without substance. Reliance in this connection was correctly placed on the decision of this Court to be found in 1985 C L C 2758. Before parting with the decision, it may be observed in passing that I also entertain grave doubts whether Mumtaz Kausar and Robina Khalid who had no sources of their own to rely on, could be deprived of right to receive maintenance from their father on the short ground that they had attained puberty. As they have not assailed the order of Family Court, nothing further need be said about it and I express no considered opinion on the merits of their claim. So far as the case of Farah Deeba and Tubassam Khalid is concerned, impugned orders proceed on the correct premises and cannot be characterised as either illegal or without jurisdiction. In the circumstances, I see no good grounds to disturb the order of maintenance passed in favour of the two minors. With these observations, this petition is, found to be without merits and is dismissed summarily.

A. A. Petition dismissed.

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