PLJ 2023 Lahore (Note) 111
Present: Ali Baqar Najafi, J.
WAHEED AHMAD--Petitioner
versus
JUDGE FAMILY COURT DISTRICT FAISALABAD AND ANOTHER--Respondents
W.P. No. 65285 of 2019, decided on 3.4.2023.
Constitution of Pakistan, 1973--
----Art. 199--Suit for recovery of maintenance allowance of minor--Interim order--Adopted daughter--Entitlement of maintenance allowance--Petitioner adopted a female child on her birth and continued to maintain her until 2017 when his wife, was divorced by him--The dispute has now been raised by petitioner that he is not responsible to pay maintenance allowance to minor--It is not denied by petitioner that it was an interim order which has yet to culminate into a final order in proceedings pending before family Court--Under law, adopted daughter is entitled to maintenance allowance--It will be unjust for petitioner to deprive minor daughter, once adopted for his emotional satisfaction, from maintaining her just because of divorce of his wife. Admittedly, since adoption both petitioner and his wife had been living together happily enjoying custody of minor seeing her grow--Petition dismissed. [Para 7 & 8] A, B & C
2010 YLR 1327 and 2018 MLD 407 ref.
Mian Tariq Hussain, Advocate for Petitioner.
Mr. Muhammad Waseem Sandhu, Advocate for Respondents.
Date of hearing: 3.4.2023.
order
Through this constitutional petition, the petitioner has challenged the order dated 02.10.2019 passed by Respondent
No. 1/Judge Family Court, Faisalabad whereby the interim maintenance of the minor/Respondent No. 2, namely, Kainat was fixed @ Rs. 4000/-per month.
2. Brief facts giving rise to the filing of this constitutional petition are that the petitioner was married with one Shamim Akhtar on 20.04.1998 but according to her she was not given any maintenance allowance and, therefore, claimed it to the extent of Rs. 15000/- per month on the ground that petitioner earned Rs. 70,000/- to 80,000/- per month being owner of the property and running the business of power looms. The suit was contested by the petitioner who stated that on 20.02.2017 the mother of Respondent No. 2, namely, Shamim Akhtar had admitted that Respondent No. 2 was not her biological daughter and that she was adopted by her being the (sic) daughter of her brother, Muhammad Jamil. However, learned Family Court vide impugned order observed that it was admitted by the petitioner that Respondent No. 2 is an adopted daughter and she was taken in his custody at the time when she was just born (6/7 days age) and ever since she remained with the petitioner until Shamim Akhtar was divorced by the petitioner. The Court further observed that the interim maintenance could be fixed by the Court and of course, the final decision shall be taken by the Family/Guardian Court on the basis of evidence which the respective parties may produce.
3. Learned counsel for the petitioner submits that petitioner is not the biological father of Respondent No. 2, therefore, is not legally entitled to pay the interim maintenance allowance to her. However, learned counsel for Respondent No. 2 submits that she always thought of the petitioner as her real father and that it is not her fault if Shamim Akhtar had separated herself from the petitioner. It was also argued that according to the statement of said Shamim Akhtar she had not separated from the petitioner. It was also argued that although in her statement made on 20.02.2017 she admitted that Respondent
No. 2 was not the biological daughter of the petitioner but an adopted daughter, could not be deprived of her interim maintenance according to law.
5. Arguments heard. File perused.
6. Admittedly in the suit for recovery of maintenance filed by Shamim Akhtar against the petitioner on 20.02.2016 she had not claimed that Respondent No. 2 was born during her wedlock with the petitioner and in this context she had made a categorical statement before the Court on 20.02.2017 admitting this position, whereafter, the spouses got separated. However, she filed a suit for recovery of the maintenance allowance against the petitioner for herself and for her daughter, Kainat which was dismissed for non-prosecution on 03.10.2018. Meanwhile, on 06.05.2019 said Kainat filed the suit against the petitioner claiming the maintenance allowance only for herself, which was contested by filing written statement wherein the petitioner stated that Respondent No. 2 is not entitled to any maintenance allowance being only an adopted daughter.
7. It is very strange to note that the petitioner adopted a female child on her birth and continued to maintain her until 2017 when Shamim Akhtar his wife, was divorced by him. The dispute has now been raised by the petitioner that He is not responsible to pay the maintenance allowance to the minor. It is not denied by the petitioner that it was an interim order which has yet to culminate into a final order in the proceedings pending before the family Court.
8. Under the law, the adopted daughter is entitled to maintenance allowance as observed in case titled “Muhammad Aslam vs. Shazia Bano and 4 others” reported as 2010 YLR 1327 particularly when it comes to the term of maintenance of the minor daughter during the interim period of pendency of family suit for recovery of maintenance allowance before the family Court. It will be unjust for the petitioner to deprive the minor daughter, once adopted for his emotional satisfaction, from maintaining her just because of divorce of Shamim Akhtar Admittedly, since the adoption both petitioner and Shamim Akhtar, had been living together happily enjoying the custody of the minor seeing her grow. Learned counsel for the petitioner has failed to point out any illegality in the impugned order warranting interference by this Court. While relying in this behalf to case titled “Mst. Tahira and, 4 others vs. Muhammad Irfan and another” reported as 2018 MLD 407 where the constitutional petition was dismissed, this petition has been found meritless which is hereby dismissed.
(Y.A.) Petition dismissed
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