اگر باپ کی مالی حیثیت کمزور ہے اور وہ بچوں کو خرچہ نہیں دے سکتا تو کوٹ بیت المال کو آرڈر دے سکتی ہے کہ وہ بچوں کا خرچہ ادا کریں

 PLD-2012-Lahore-445

اگر باپ کی مالی حیثیت کمزور ہے اور وہ بچوں کو خرچہ نہیں دے سکتا تو کوٹ بیت المال کو آرڈر دے سکتی ہے کہ وہ بچوں کا خرچہ ادا کریں

Before Ibad-ur-Rehman Lodhi, J

ABDUL MAJEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 4 others---Respondents

Writ Petition No.22305 of 2010, decided on 18th May, 2012.

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

----S. 5 & Sched. ---Constitution of Pakistan, Art. 199---Constitutional petition---Maintenance allowance for minors, recovery of---Petitioner was grandfather of minors and he failed to provide maintenance allowance as fixed by Family Court---Plea raised by petitioner was that he was a pensioner having meagre sources of income and was unable to pay maintenance to minors as fixed by Family Court---Validity---By putting a person with 76 years of age behind the bars, the minors would not be adequately compensated with regard to their maintenance, when grandfather was a pensioner and not in a position to maintain the minors---Such was not enough to attend miseries of the minors---High Court observed that system of Zakat could be linked up with Family Court to the extent that if Family Court was of the view that persons liable to pay maintenance were poor and those who should have to receive maintenance also fell under the clause of eligible persons entitled to receive Zakat funds, then suitable directions to Zakat and Ushr Council be also issued---Family Courts were also expected not to deal with delicate matters touching the rights of people, particularly destitute ladies and needy minors and instead of dealing with their such affairs in mechanical manner, there was a need to adopt new line of action to start with creation of a society, which was dreamed of as a social welfare State---By putting person behind the bars for non-providing maintenance to deserving people, no service was being offered to such needy people but their miseries were being added---High Court directed the authorities to register the minors as regular beneficiaries from District Bail-ul-Maal---Petition was disposed of accordingly.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Sohail Muhammad Shees Farooq v. Mst. Minza Roomana and another 1998 MLD 1972; Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930; Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543; Abdul Ghani v. Muhammad Ishfaq and others 1994 CLC 444; Abdullah v. Jawaria Aslam and 2 others 2004 YLR 616 and Mawra Arshad v. Sheikh Ehsan Ghani 2005 SCMR 1293 ref.

(b) Constitution of Pakistan---

----Arts. 5 & 7---Loyalty to State and obedience to Constitution and law---Every child born in Pakistan is subject matter of the Constitution and State is responsible to provide all what has been guaranteed in the Constitution.

(c) Constitution of Pakistan---

----Part-II, Chap. 2 [Arts. 29 to 40]---Principles of policy---Scope---Each organ and authority of the State and each person performing on behalf of an organ or authority of the State is responsible to act in accordance with such principles in so far as they relate to the functions of the organ or authority.

(d) Constitution of Pakistan---

----Arts. 31 & Part II, Chap.2 [Arts. 29 to 40]---Principles of Policy---Islamic way of life---Any organ of the State can be directed by an order of the Court to observe Principle of Policy in their respective spheres of working.

Shahid Shaukat for Petitioner.

Muhammad Nasir Chohan, A.A.G. for Respondents.

Date of hearing: 26th April, 2012.

***JUDGMENT***

IBAD-UR-REHMAN LODHI, J.---

When for the first time, the file of the present writ petition was placed before me, it was all set to send the petitioner to prison for his default in making payment of the amount of maintenance, awarded to his grand-children by way of a decree of a learned Judge Family Court. In such situation, firstly I put a question to myself as to whether by putting a person with 76 years of age behind the bars, the minors would be adequately compensated with regard to their maintenance, particularly when the grand-father with the help of his pension documents has placed on record his position of getting Rs.5688/- per month against pension and also maintaining his aged wife in addition to his own liability. The answer naturally was in negative, but this was not enough to attend the miseries of the minors and having in mind the parental jurisdiction of this Court, I felt myself bound to look into the possible means to socially accommodate the minors with regard to their, at least day-to-day expenses.

2. This takes me to examine the point as to in such like situation, what would be the responsibility of State, particularly State of "Islamic Republic of Pakistan".

3. In order to examine inter-relation matters of State and people, we have a social contract under the name of Constitution, which was enacted and given to the people of Pakistan through their chosen representatives in the National Assembly.

4. Preamble of any legislation is always considered a key to that legislation and in view of the preamble of Constitution it is inter alia provided that the principles of social justice as enunciated by Islam, shall be fully observed and also the fundamental rights were guaranteed to provide the social and economic justice to the people of Pakistan. Needless to mention here that a child born in Pakistan is subject matter of the Constitution and State is responsible to provide all what has been guaranteed in the Constitution.

5. The "State" is defined in Article 7 of the Constitution, which means the Federal Government, Parliament, a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as, are by law empowered to impose any tax or cess.

6. In the definition of State as provided in Article 7 of the Constitution, the different organs or authorities are also included in the definition of State.

7. While dealing with the Constitution, it would be appropriate to examine the different Articles of the Constitution relevant for the present purposes.

Article 14 of the Constitution provides that the dignity of man shall be inviolable.

Chapter-2 of the Constitution set out the principles known as Principles of Policy and it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with such principles in so far as they relate to the functions of the organ or authority.

In view of Article 30 of the Constitution, the responsibility of deciding whether any action of an organ or authority of the State or of any person performing functions on behalf of an organ or authority of the State, is in accordance with Principle of Policy is that of the organ or authority of the State, or the person concerned.

Article 35 of the Constitution imposes a responsibility on the State to protect the family, the mother and the child.

In view of Article 37 of the Constitution, State is again responsible to promote the social justice and to eradicate social evils and in view of Article 38 of the Constitution, the promotion of social and economic well-being of the people is again the duty of the State.

8. A Full Bench of honourable Sindh High Court in case of SHARF FARIDI and 3 others v. THE FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Prime Minister of Pakistan and another (PLD 1989 Karachi, 404) has dealt with a number of constitutional provisions including Chapter-2 relating to the Principles of Policy and it found that in the wake of controversy, it was necessary first to ascertain the principles of interpretation, which may be applicable in such a situation. The governing principle is that as the Constitution is a document, which affects the life, liberty and the rights of the people and also provides to governance of the country, it has to keep alive to meet the social, moral, commercial, political and legal bars and problems, which may arise from time-to-time. It is also held that the Constitution should not be interpreted in a narrow and pedantic manner. It should be given liberal and broad interpretation to any enactment, which transgress the limitation placed by Constitution, would be declared void.

9. In order to achieve the goals on the basis of Principles of Policy and to see as to whether the provisions of Chapter-2 are being implemented at Federal and Provincial level, a duty in view of Article 29(3) has been cast upon the President and the Governor of each province to cause to be prepared and laid before each House of Parliament or, as the case may be, the Provincial Assembly, a report on the observance and implementation of the Principles of Policy for discussion by the chosen representatives in the Assemblies on such report.

10. There is a general impression that the Principles of Policy are not justice able and are provided in the Constitution, just for glorification purposes. This impression gained strength, when a report was called for, from the Secretary, Provincial Assembly of Punjab with regard to the report required to be laid by the Governor in view of Article 29(3) of the Constitution, who reported vide his memo dated 18-4-2012, to the following effect:--

"I am directed to refer to your letter No.6810-AG dated 6th April, 2012 on the subject cited above (copy enclosed) and to state that under clause (3) of Article 29 of the Constitution, a report on the observance and implementation of Principles of Policy in respect of each year is required to be laid in the Provincial Assembly and as per rule 130 of the Rules of Procedure of Provincial Assembly of the Punjab 1997 the report in relation to the affairs of the Province of the Punjab shall be laid in the House by a Minister.

2. The said report for the year 2011 has not yet been laid in the Provincial Assembly of the Punjab."

By not laying the report, the Governor or the Minister, who according to the Secretary, Punjab Assembly was supposed to lay such report in view of the rules of procedure of Provincial Assembly, have not only that failed to perform their constitutional duty, but also extended a message to the people at large that the Principles of Policy are provided in the Constitution just to add beauty in the wordings of the Constitution.

11. In case titled SOHAIL MUHAMMAD SHEES FAROOQ v. Mst. MINZA ROOMANA and another (1998 MLD 1972), it was held that in the family matters it is the Social Justice and not a Legal Justice, which is to be advanced and such is also the obligation of State under the Principles of Policy, as provided in the Constitution, which charges the executive to advance social justice and eradicate evil, and protect weaker section of the society.

Although, the studying of the enactments of Bait-ul-Maal does not support the proposition that this institution is specifically established to cater the needs of the broken families, poor ladies and orphan children are very well subject of these laws.

12. In Pakistan, we have no enacted law, providing any mechanism for the deprived minors to get maintenance and in some judgments passed in the past, wherein the duty to maintain the minors has been assigned a status of statutory or legal duty were seemingly passed ignoring the factual position that in fact no such statutory enactment is in existence in Pakistan.

13. No doubt, the matter of maintenance for the minors is being dealt with by the Family Courts in Pakistan, for which an Act known as West Pakistan Family Courts Act, (Act XXXV) of 1964 was promulgated. Section 5 thereof gives jurisdiction to the Family Courts to adjudicate upon certain matters, the same is reproduced herein below:--

"5. Jurisdiction.---[(1)] Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part I of the Schedule.]"

and when such jurisdictional clause is to be interpreted, we have to look into the provisions of Muslim Family Laws Ordinance (VII) of 1961 and on reading of Section 9 of the same and section 5 of the Family Courts Act, (Act XXXV) of 1964 together with the schedule provided in the Family Courts Act, particularly Item No.3 relating to the maintenance, it would be abundantly clear that maintenance of wife or wives may be a subject matter of a suit to be instituted before a Judge Family Court. This legal position do raise a necessity for our law givers to suitably amend Section 9 of Ordinance, 1961 and then the relevant provisions of Family Courts Act, 1964, so as to give a statutory right to the minors to be enforceable through a legal process.

14. Muhammadan Law is being applied in our judicial system and in the present case, the petitioner, grand-father of the children was bound down to pay maintenance in view of the provision of head-note 370(3) of Muhammadan Law by D.F. Mullah, but even the provisions of said section have not been taken into consideration in its totality, which no doubt imposes a liability on grand-father of the children to maintain them, PROVIDED he is in easy circumstances.

15. Notwithstanding the fact that Muhammadan Law being relied upon in our system is not an enacted law, rather a collection of opinion of companions of Prophet (P.B.U.H.) and his disciples and also an analogical deductions derived from a comparison of Quran, Hadis, ljmaa, or it is mostly derived through the books of scholars on Islam and strictly speaking the provisions of Muhammadan Law are also not enforceable through force of law.

16. In our judicial history, the liability of grand-father to maintain his grand-children in absence or in case of inability of their real father to maintain them, has been dealt with at different times. In case of Haji NIZAM KHAN v. ADDITIONAL DISTRICT JUDGE, LAYALLPUR AND OTHERS (PLD 1976 Lahore 930), this concept has been dealt with in detail along with the liability of the State with regard to the Principles of Policy enunciated in the Constitution and this Court in the reported citation was of the view that the judiciary though cannot direct organs, authorities and persons included in definition of State under Article 7 to act according to the Principles of Policy, yet Superior judiciary is not barred either to set down a rule for itself to follow Principles of Policy or to declare it for subordinate judiciary to act in accordance with said principles. It was also the settled view in the said citation that there is no bar on the Superior judiciary to declare a law in accordance with the said Principles of Policy. It is a mandate contained in Article 31(1) of the Constitution to take steps to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam. Hence, any organ of the State can be directed by an order of the Court to observe the Principles of Policy in their respective spheres of working.

17. In GHULAM NABI v. MUHAMMAD ASGHAR and 3 others (PLD 1991 SC 543), it was observed that in absence of father, priority-wise, it was the duty of grand-father to maintain the minors.

18. In case of ABDUL GHANI v. MUHAMMAD ISHFAQ and others (1994 CLC 444), it was the observation of a learned Single Bench of this Court that minors have a STATUTORY right to get maintenance from their grand-father after the death of their real father.

19. In case of ABDULLAH v. JAWARIA ASLAM and 2 others (2004 YLR 616), again a learned Single Bench of this Court was of the view that if the grand-father is a man of means then he is bound by LAW to maintain the grand-children.

20. In case of MAWRA ARSHAD v. Sheikh EHSAN GHANI (2005 SCMR 1293), though it was a case filed as Criminal Original, complaining a disobedience of some earlier commitment made by the respondents therein, however, it was found by the apex Court that when father and grand-father both were bound to make payment according to their commitment, if father is alive, but not attending to the needs of his children, the grand-father is duty bound to pay maintenance to the minors, which will be reimbursed to grand-father by the father of the minors.

21. In all the above reported citations, although in some of those, some statutory or legal provisions are mentioned, but without disclosing as to which is the governing statutory law on the subject of maintenance to minors and as discussed above, yet in Pakistan a law is to be enacted on the subject of the right of minors to get maintenance through a judicial process.

22. The State by feeling its responsibility, both at Federal and Provincial level, has constituted the institutions for social welfare and Bait-ul-Maal is one of such institutions and in establishment of Bait-ul-Maal the Province of Punjab has taken lead when through Act, VII of 1991 i.e. the Punjab Bait-ul-Maal Act, 1991, was promulgated on 30th March, 1991 and the basic principle of said legislation was to provide for the establishment of charitable funds and by virtue of Section 5 of the said Act, the utilization of the Bait-ul-Maal has been provided, which includes the relief and rehabilitation of the poor and the needy, particularly poor widows and orphans, educational assistance to the poor and deserving students and other purposes also. There are District Bait-ul-Maal Committees in view of Section 7(3) of the said Act working at all district levels.

23. In addition to above legislation there is also a Zakat and Ushr Ordinance (XVIII), 1980, which provides the manner of collection of such funds and utilization thereof includes the assistance to the needy, particularly the orphans and widows by virtue of Section 8 thereof, which is reproduced herein below:-

8. Utilization of Zakat Funds.---The moneys in a Zakat Fund shall be utilized for the following purposes, namely,

(a) assistance to the needy, the indigent and the poor particularly orphans and widows, the handicapped and the disabled, eligible to receive Zakat under Shariah for their subsistence or rehabilitation, either directly or indirectly through Deeni Madaris, or educational, vocational or social institutions, public hospitals, charitable institutions and other institutions providing health care.

24. The system of Zakat can be linked up with the Family Courts to the extent that if the Family Court is of the view that the persons liable to pay maintenance are poor and those who should have to receive maintenance also fall under the clause of eligible persons entitled to receive Zakat funds, then the suitable directions to Zakat and Ushr Council be also issued.

25. At Federal Level, considering the responsibility of the

State in different social matters institution under the name of Pakistan Bait-ul-Maal has been established by promulgating Pakistan Bait-ul-Maal Act, 1991, which opened with the wording of preamble as under:-

WHEREAS it is the duty of the State to provide for basic necessities of life, such as food, clothing, housing, education and medical relief for all citizen irrespective of their sex, caste, creed or race, who are permanently or temporarily unable to earn their livelihood on account of sickness or unemployment or circumstances beyond their control. Section 4 of Pakistan Bait-ul-Maal Act further elaborate its purposes in the following manner:--

(4). Administration of Bait-ul-Maal.---The Bait-ul-Maal shall be administered by the Board and the moneys in the Bait-ul-Maal shall be utilized for the following purposes namely:--

(a) to provide financial assistance to destitute and needy widows, orphans, invalid, infirm and other needy persons".

(b) ……

26. There is also a Child Support Programme under the Pakistan Bait-ul-Maal scheme and its objectives naturally contain to promote primary school education and to reduce dropout ratio by providing additional resources to ultra poor families for sending their children to schools.

27. In the Local Government Ordinance, promulgated in all provinces simultaneously the needs of poor and needy persons are catered under the head of Community Development by constitution of Social Welfare Institutions, Bait-ul-Maal Wing and relief and rehabilitation proceedings at District level.

28. The over-all picture emerges before us in view of analysis of all what has been discussed above is, that on papers, we have announced good ideas, but its practical effect is no where seen and the persons like petitioner, who themselves deserve to be looked after or maintained, are burdened to share their, what they are getting a meager amount with others, and in such manner, we are pushing the people behind poverty line, where reportedly 40 % of our population is already suffering miseries by living under that poverty line.

29. We have to look forward, if we want to live in a dignified manner, not only as a State, but also in all our individual lives and we have to pay respect and dignity to the people, with whom the social contract in the shape of Constitution has been entered into by the State through the chosen representatives of the people.

30. Our Family Courts are also expected not to deal with the delicate matters touching the rights of the people, particularly the destitute ladies and needy minors and instead of dealing with their such affairs in a mechanical manner, there is a need to adopt a new line of action to start with the creation of a society, which is dreamed of as a social welfare State. By putting the persons behind the bars for non-providing the maintenance to deserving people, no service is being offered to such needy people, but their miseries are being added. This needs some new venues to be opened and it is suggested as follows:--

(i) The legislators and the Pakistan Law Commission, which recommends suitable legislation, are to take steps to amend the provisions of Section 9 of Muslim Family Laws Ordinance, 1961. Section 5 and Schedule of West Pakistan Family Courts Act, 1964, to enable the minors to get their right of maintenance through a recognized mode of law through judicial process,

(ii) The Family Courts in the Province, if reached to the conclusion that father or the grand-father, as the case may be, are themselves not in a position to afford in easy circumstance to maintain their dependents, after an inquiry as provided in C.P.C. for pauperism, to direct the plaintiffs before the said courts to implead the State as a respondent in the pending list and then to direct the relevant organ or authority of the State, including Bait-ul-Maal and the Local Governments to regularly pay the determined maintenance to the minors. Needless to mention here that when the right of the minors or ladies seeking maintenance has been determined by a court of law, there will be no further need to verify their such claims by the organ or authority, which would be directed to pay the maintenance to such people.

31. The office is directed to circulate the copies of this judgment to all the learned District Judges in the Province, who will direct the learned Judges of the Family Courts to observe the procedure as is proposed above.

32. In order to ascertain as to what is the position in District Faisalabad with regard to the Community Development Program, which is a part of the Bait-ul-Maal Scheme, report was solicited from District Co-ordination Officer, Faisalabad and the same was furnished through the Provincial Law Officer and the D.C.O. has reported that the Community Development Department of City District Government, Faisalabad is actively helping the weaker parts of the society. The D.C.O., Faisalabad is directed to register the minors, viz, Arman Tayyab son of Muhammad Tayyab Majeed and Mst. Zainab Tayyab daughter of Muhammad Tayyab Majeed, residents of House No.151-D, St.No.4/5, Mohalla Fateh Abad, Faisalabad, as regular beneficiaries from District Bait-ul-Maal and Rs.5000/- per month per minor, is to be regularly paid to them without any break or fail w.e.f. May, 2012. The son Arman Tayyab is entitled to continue to get the maintenance till his age of majority, whereas the daughter Mst. Zainab Tayyab is entitled to get the maintenance till her marriage. 10% annual increase will be added in the fixed maintenance. The compliance report be furnished by the D.C.O. to the Deputy Registrar (Judl.) of this Court for examination by the Court within a fortnight.

M.H./A-105/L Order accordingly Bait ul mal will provide maintanance.