Jurist in section 370. Maintenance of children and grandchildren.

4. There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e. as per the personal law of the parties. In this context, according to section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and the capacity of the father to pay. Anyhow, the same jurist in section 370 of the book has elucidated the liability of the father to pay the maintenance to his children as follows:-
“370. Maintenance of children and grandchildren.---

(1) 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 they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

 (2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

 (3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”

Again in interpreting the word “maintenance” some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing and lodging, it cannot, by any stretch of imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that the child must be maintained until it is in a position to earn its own livelihood, in an honest ad decent manner in keeping with its family status.

PLD 2013 SC 557

LAHORE HIGH COURT AT LAHORE WP No.154537 of 2018

Haq Mahr (Dower) is the sole property of the wife

By following the ordains of Allah Almighty and relying upon the judgments reported in the cases of Haji Ajab Gul and 3 others Vs: Rahim Gul and 28 others (1991 SCMR 2500), Mst. Bakht-e-Rawida Vs: Ghulam Habib and 2 others (PLD 1992 Karachi 46) and Mst. Manzoor Elahi Vs: Muhammad Nawaz (2002 MLD 988),

It can safely be held that the Haq Mahr (Dower) is the sole property of the wife and neither parents nor any other relative has any right whatsoever over it.


Used in Judgement of
Lahore High Court
WP- Family Law
5726-16

Attachment of the property in dispute.

“We have heard the learned counsel for the petitioner at length. We find that there is no evidence on record to prove the genuineness and authenticity of the alleged agreements to sell dated 10.10.1996 and 30.6.1998 purported to have been executed by the judgment-debtor and by Muhammad Ashraf respectively in respect of the sale of the attached property. The sale-deed was allegedly executed on 02.6.1999 after the attachment of the property in dispute. Therefore, the sale-deed dated 02.6.1999, even if executed, was rightly held, by all the courts, to be invalid. The judgments relied on by the learned counsel in his behalf are not applicable to the facts and circumstances of the case.” (Emphasis provided)

2002 SCMR 1950

Used In Judgment of:
Lahore High Court
WP- Family Law
13054-12

Family Court as well as the Appellate Court,

 The assessment and appraisal of evidence is the function of the Family Court as well as the Appellate Court, which is vested with exclusive jurisdiction in this regard and this Court in its constitutional jurisdiction has to see whether there is any jurisdictional defect, misreading, non-reading or illegality in the judgments passed by the courts below. 

Reliance in this regard is placed upon the cases of Muhammad Ashiq Vs. Addl. District Judge Okara( 2003 CLC 400) and Aqil zama Vs. Mst. Aza Bibi and others (2003 CLC 702).

Used in Judgement of
Lahore High Court
WP- Family Law
5726-16

How the law grows and this is how the jurisprudence advances.

”(2012 SCMR 1258) it is held that: -

“ This Court has consistently held that if a lis involving a disputed question of fact is decided, it has to be decided on proper appraisal of evidence and that if a lis involving appreciation or interpretation of law is decided, it has to be decided in accordance with the well recognized principles laid down by this Court from time to time. Justice at no cost and at no stage be allowed to fall prey to the procedural technicalities. They be ignored if they tend to create hurdle in the way of justice. For law can survive as a living force only, when it dynamically assimilates and adapts to the changes around to further the cause of justice. This is how the law grows and this is how the jurisprudence advances.”

Used in Judgement of
Lahore High Court
Writ Petition-Family-Guardianship
8676-15

Suit for recovery of dowry articles

It is a matter of observance that in family disputes, particularly in suit for recovery of dowry articles in most of the cases both the parties try to conceal true facts qua its quantity , therefore, it becomes the duty of the Court to decide the controversy in a manner so that no injustice could be done to either side. In order to fulfill this obligation a Family Court being a quasi judicial forum could draw and follow its own procedure provided it is not against the principles of fair hearing, trial and equity etc.

Reliance is placed on case reported as Muhammad Tabish Naeem Khan ..Vs.. Addl. District Judge, Lahore and others (2014 SCMR 1365).

Used in Judgement of
Lahore High Court
Family
171788/18

CPC are not to be followed by the Family Court in execution of a money decree

Bare reading of the above provision makes it abundantly clear that for enforcement of a money decree the learned Executing Court is empowered to recover the decretal amount as arrears of land revenue. In the West Pakistan Land Revenue Act there are various modes for recovery of land revenue are provided and one of the mode is to sale out the property of the defaulter which was adopted by the learned Executing Court in the present case. Therefore, referred procedural provisions of CPC and technical trappings provided in the CPC are not to be followed by the Family Court in execution of a money decree.

 Reliance is placed on case reported as Amjad Iqbal ..Vs. Mst. Nida Sohail (2015 SCMR 128).

Used in Judgement of
Lahore High Court
Family
64857/17

Father or mother to retain the custody of minor

 (PLD 2003 Supreme Court 877) that

“The primary consideration for determining the question of custody is always the welfare of the minor and there could not be an absolute rule and fixed criteria to determine the question of welfare in the same manner in each case rather it being a mixed question of law and fact is decided in the facts of each case and consequently the factors having only social importance or the desirability of the father or mother to retain the custody of minor, would not overwrite the consideration of welfare in determining the question of custody.”

Used in Judgement of
Lahore High Court
Writ Petition-Family-Guardianship
8676-15

Failed to produce any valid receipts to substantiate her claim is concerned

So far as the contention of the petitioner that the respondent has failed to produce any valid receipts to substantiate her claim is concerned, suffice it to observe that the articles contained in the list (except gold ornaments) are of ordinary nature and usually given to a bride at the time of marriage, as such non-submission of its receipts are not fatal.

Reliance is placed on case reported as Muhammad Habib ..Vs.. Mst. Safia Bibi and others (2008 SCMR 1584).

Used in Judgement of
Lahore High Court
Family
171788/18

Claim relief only when

 (2011 SCMR 374) wherein it has been laid down as under:-

 “There is no cavil to the proposition that the “conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim ‘ he who seeks equity must do equity”. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law under which he is claiming entitlement.”

Used in Judgement of
Lahore High Court
Family
64857/17

Remain with a person who was looking after the child

In the case of Muhammad Ashraf v. District Coordination Officer, Lahore and 2 others (PLD 2006 Lahore 219) while dealing with a matter of custody of an abandoned child, the child was allowed to remain with a person who was looking after the child for the past 10 months, taking into account emotional attachment of the child. The welfare of the minor includes material, physical, emotional and the psychological well-being as held in the case of Abdul Razzaque and 3 others v. Dr. Rehana Shaheen and another (PLD 2005 Kar 610).

Used in Judgement of
Lahore High Court
Writ Petition-Family-Guardianship
8676-15

Welfare of the minor

The learned trial Court while passing the impugned order seems to be over impressed with the monetary resources of the respondents. This is not the only criterion for the welfare of the child. The Court should decide such a matter by evaluating all the attending factors. In the case of Abdul Majeed v. Additional District Judge, Talagang and 2 others (2009 CLC 1143), it was held that the welfare of the minor was not only monetary but it was emotional as-well and the emotional welfare of the minor was much more important than the fiscal aspect.

Used in Judgement of
Lahore High Court
Writ Petition-Family-Guardianship
8676-15

Insufficient to rebut the version of the plaintiff/respondent,

“Having heard learned counsel for the petitioner in the light of the material on file, we find that learned High Court has rightly observed that “the evidence of the petitioner is insufficient to rebut the version of the plaintiff/respondent, Mst. Safia Bibi,…. The learned appellate Court after proper appreciation of the evidence on record modified the decree of learned Judge Family Court and accepted the appeal of the plaintiff/respondent regarding her whole claim of Rs.1,80,7000. The perusal of list Exh.P.1 reveals that these are the articles which are ordinarily given to a bride at the time of her marriage. Both the Courts below have given concurrent findings which are based upon substantial evidence and the petitioner has not been able to show any illegality or irregularity committed by the Courts below in the impugned judgments so as to warrant interference by this Court in exercise of its constitutional jurisdiction.”

2008 SCMR 1584

Used in Judgement of
Lahore High Court
WP- Family Law
5855-13

Petitioner has been hiding and creating hurdles

(PLD 1962 (W.P.) Lahore 558) upheld in PLD 1963 SC 51 (same parties) is that the reading of “Segheas” in presence of parties is a part of substantial law, which has been followed by reading the “Segheas” before an “Alim” under authority since, keeping the facts and circumstances of the case, the petitioner has been hiding and creating hurdles against the mandatory provision of law. In my humble view, Shia Personal Law of divorce is not so strict so as to make a woman slave of the man who would always remain unable to get divorce without his permission


Used In Judgement of
Lahore High Court
WP- Family Law
26026-14

5% annual in their maintenance allowance

“In view of the above mentioned, this appeal is partly allowed. The annual increase of 20% over and above the maintenance allowance of Rs.3000 per month per child ordered by the Family Court affirmed by the appellate Court and High Court is reduced to 5% annual increase with an observation that minors can always approach the Family Court for the increase in their maintenance allowance due to any change in any circumstances. There are, however, no orders as to costs.”

PLD 2009 S.C. 760

Used In judgment of:
Lahore High Court
WP- Family Law
9733-12
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