-Minor sucklingbaby---Razayat and Hazanat---Scope---Petitioner was ex-husband of respondentand was aggrieved of order passed by Family Court to provide interimmaintenance allowance to respondent for their minor suckling baby afterdivorce---

 2019 C L C 511

Family Courts Act (XXXV of 1964)---

----Ss. 5 & 17-A---Interim maintenance, grant of---Minor sucklingbaby---Razayat and Hazanat---Scope---Petitioner was ex-husband of respondentand was aggrieved of order passed by Family Court to provide interimmaintenance allowance to respondent for their minor suckling baby afterdivorce---Validity---Concept of Razayat and Hazanat were well established andevery child had following rights over its parents, (a) right of razayat orbeing suckled; (b) right of fosterage and being brought up; and (c) right ofbeing trained and educated---High Court declined to interfere in constitutionaljurisdiction as Family Court had rightly included interim maintenance fordivorced mother of minor as order passed by Family Court was only tentative innature and amount of maintenance would finally be decided after recording ofevidence---Constitutional petition was dismissed in circumstances.

AyatNo.233 of Surah Al-Baqra from the Holy Qur'an; A.R. Khan v. P.N. Boga throughLR PLD 1987 SC 107; Messrs Home Comforts v. Mirza Rashid Baig and others 1992SCMR 1290; Federation of Pakistan v. Amir Hamza 2001 SCMR 1959; Noor Muhammad,Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2003SCMR 708; Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) SyedMukhtar Ali Shah and another 2007 SCMR 569; Ayat No.6 of Surah Talaq by Mr.Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 Three-Volume Edition -1969; Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473; Captain S.M.Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Muhammad Ameen v. Mst. Mehar un Nisa andothers PLD 1988 FSC 100; Syed Saghir Ahmad Naqvi v. Province of Sindh throughChief Secretary, S&GAD, Karachi and another 1996 SCMR 1165; Muhammad TabishNaeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365;Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128 and Mst. Tahira and 4others v. Muhammad Irfan and another 2018 MLD 407 rel.

Ch. Irfan Ahmed forPetitioner.

 2019 C L C 511
[Lahore (Rawalpindi Bench)]
Before Shakil-ur-Rehman Khan, J
NAVEED AHMED----Petitioner
Versus
Mst. MEHWISH RIAZ and others----Respondents
W.P. No.3263 of 2018, decided on 28th November, 2018.

ORDER

SHAKIL-UR-REHMANKHAN, J.---The relevant facts forthe decision of the instant petition are that Naveed Ahmed, petitioner wasmarried to Mst. Mehwish Riaz, respondent No.1 on 10-02-2017 and minor Abdullah,respondent No.2 was born on 16-11-2017. Unfortunately, the petitioner divorcedher on 11-5-2018 and she filed a suit for recovery of dowry articles, goldornaments and maintenance allowance at the rate of Rs.20,000/- for herself aswell as for their minor son as well as recovery of Rs.5,00,000/- as per columnNo.19 of the Nikahnama. The petitioner filed a contesting written statement.Thereafter, as many as eight (

issueswere framed vide order dated 10-10-2018 and the learned Judge, Family Courtalso fixed the ad-interim maintenance allowance for respondents Nos. 1 and 2 atthe rate of Rs.3,500/- per month for each. This order has been challenged tothe extent of granting interim maintenance allowance to respondent No.1, by thepetitioner through the instant constitutional petition.

2. Learnedcounsel for the petitioner argued that the petitioner is ready to pay theinterim maintenance for minor Abdullah who is a suckling baby, however,respondent No. 1 is not entitled for any such relief being a divorcee. Hepoints out that it is the case of the lady, that Talaq was pronounced on11.05.2018 and Talaq Nama was sent to her. He further argued that it is amatter of evidence that whether Abdullah, the minor son is being breast fed ornot. However, he admits that this particular ground has not been taken in theinstant writ petition but he hastened to add that this particular fact has noteven been mentioned in the plaint filed by his ex-wife / respondent No.1. Hehas also relied upon Ayat No.233 of Surah Al-Baqra from the Holy Qur'an.

3. Heard.Record perused.

4. Ihave gone through the pleadings of the parties as filed before learned FamilyCourt as well as the instant writ petition. Learned counsel for the petitioneris correct in pointing out that the plaint does not state anything about minorAbdullah to the effect that he is a suckling baby. However, in ground (c) ofthe instant petition, it has been stated as follows:-

"c.That the respondent No.2 is a suckling baby and the learned trial court awardedinterim maintenance for him @ Rs.3500/- and the petitioner is ready to pay theinterim maintenance as per order of the Honourable Court, however therespondent No.1 is not entitled for any such relief being divorcee lady."

Inany case, the learned Family Court in para No.2 of the impugned order dated10.10.2018 has held as follows:-

"2.Admittedly, plaintiff No. 2 is issue of the parties who is in custody ofplaintiff No. 1. Father is duty bound to provide maintenance allowance to hischildren, therefore the interim maintenance allowance @ Rs.3500/- per month forplaintiff No. 2 is fixed till the disposal of suit in hand whereas admittedlythe minor is below the age of two year who is in custody of plaintiff No. 1,meaning thereby plaintiff No. 2 is a suckling baby therefore plaintiff No. 1 isalso entitled for interim maintenance allowance @ Rs.3500/- per month till theminor reaches the age about two years or the disposal of suit in handwhich-ever is earlier. Interim maintenance allowance shall be paid by defendanton or before 14th of each month in case of any failure proceeding under section17-A shall be initiated against him. Interim maintenance allowance shall bepayable from the first date of appearance of defendant in the suit."

In view of the above, it needs to be noted that the petitioner himselfrefers to his minor child Abdullah as "a suckling baby", as such, inthese circumstances the principle of approbate and reprobate is fullyapplicable in the case of the petitioner and the petitioner cannot blow hot andcold in the same breath. Reliance is placed on the cases reported as A.R. Khanv. P.N. Boga through LR (PLD 1987 SC 107), Messrs Home Comforts v. Mirza RashidBaig and others (1992 SCMR 1290), Federation of Pakistan v. Amir Hamza (2001SCMR 1959), Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue,Punjab, Lahore and others (2003 SCMR 708) and Overseas Pakistanis Foundationand others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another (2007 SCMR569).

The above noted para from the impugned order shows that the learnedJudge, Family Court completely understanding the wisdom and intention of thelegislature in promulgating the Family Courts Act, 1964 exercised parental jurisdiction, while passing the impugned order dated 10-10-2018. Learned Family Court is aquasi-judicial forum and the impugned order is well within the four corners ofthe law.

5. AlmightyAllah through various verses of the Holy Qur'an has laid down the basic ruleson which the rights of the child are based, in the above-noted circumstances.The English translation as well as commentary of Ayat No.233 of Surah Baqara byMr. Abdullah Yusuf Ali in Volume-I (Two-Volume Edition - 1977) at page 93 isreproduced as follows:-

Translation:

"Themothers shall give suck to their offspring for two whole years, if the fatherdesires, to complete the term. But he shall bear the cost of their food andclothing on equitable terms. No soul shall have a burden laid on it greaterthan it can bear. No mother shall be treated unfairly on account of her child,nor father on account of his child. An heir shall be chargeable in the same wayif they both decide on weaning, by mutual consent, and after due consultation,there is no blame on them. If ye decide on a foster-mother for your offspring,there is no blame on you, provided ye pay (the mother) what ye offered, onequitable terms. But fear Allah and know that Allah sees well what ye do."

Commentary:

"Asthis comes in the midst of the regulations on divorce, it applies primarily tocases of divorce, where some definite rule is necessary, as the father andmother would not, on account of the divorce, probably be on good terms, and theinterests of the children must be safeguarded. As, however, the wording isperfectly general, it has been held that the principle applies equally to thefather and mother in wedlock : each mustfulfill his or her part in the fostering of the child. On the other hand, it isprovided that the child shall not be used as an excuse for driving a hardbargain on either side. By mutual consent they can agree to some course that isreasonable and equitable, both as regards the period before weaning (themaximum being two years) and the engagement of a wet-nurse or (by analogy) forartificial feeding. But the mother's privileges must not be curtailed simplybecause by mutual consent she does not nurse the baby. In a matter of this kindthe ultimate appeal must be to godliness, for all legal remedies are imperfectand may be misused."

TheEnglish translation as well as commentary of Ayat No.6 of Surah Talaq by Mr.Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 (Three-Volume Edition -1969) is reproduced as follows:-

Translation:

"Letthe women live (In 'iddat,) in the same style as ye live, according to yourmeans : Annoy them not, so as to restrict them.5516 And if theycarry (life in their wombs), then 5517 spend (your substance) onthem until they deliver their burden : and if they suckle your (offspring),give them their recompense : and take mutual counsel together, according towhat is just and reasonable. And if ye find yourselves5518 indifficulties, let another woman suckle (the child) on the (father's) behalf.5519"

Commentary:

"5517.If there is pregnancy, a sacred third life comes on the scene, for which thereis added responsibility (perhaps added hope of reconciliation) for bothparents. In any case no separation is possible until after the child is born.Even after birth, if no reconciliation between parents is possible, yet for thenursing of the child and for its welfare the care of the mother remains theduty of the father, and there must be mutual counsel between him and the motherin all truth and sincerity.

5518."If ye find yourselves in difficulties": e.g., if the mother's milkfails, or if her health fails, or if any circumstance arises which bars thenatural course of the mother nursing her own child. There may be psychologicaldifficulties also.

5519.That is, the father must stand all expenses, without cutting down thereasonable allowance to which the mother is entitled in thecircumstances."

The above clearly shows that even the foster mother is to be paid for herservices. The right of such a child is so intertwined with the mother that itis imperative for the mother to be duly supported, provided for and properlylooked after for the period she feeds the child.

Keeping in view the above and the jurisprudence on the subject, theconcepts of Razayat and Hazanat are well established. Every child has followingrights over its parents:-

a) Right ofRazayat or being suckled;

b) Rightof fosterage and being brought up; and

c) Rightof being trained and educated.

Itmay not be out of place to mention here that a special law for such childrenand for protection of breast feeding has been promulgated, titled as theProtection of Breast-Feeding and Child Nutrition Ordinance, 2002. Modernscience also recognizes that mother's milk is the best food for the baby. Inthis view of the matter the impugned order dated 10-10-2018, the learned FamilyCourt has rightly included the interim maintenance for the divorced mother ofthe minor. Reliance in this regard can safely be placed on the cases reportedas Muhammad Aslam v. Muhammad Usman and others (2004 CLC 473), Captain S.M.Aslam v. Mst. Rubi Akhtar (1996 CLC 1) and Muhammad Ameen v. Mst. Mehar un Nisaand others (PLD 1988 Federal Shariat Court 100).

6. Italso needs to be noted that the impugned order has been passed under theprovisions of Section 17-A of the said Act which provides for the interimmaintenance. Moreover, subsection (3) of the section 14 of the said Actprovides as follows:-

"14.Appeals. - (3) No appeal or revision shall lie against an interim order passedby a Family Court."

In view of these statutory provisions and the below noted precedents, itis clear that the impugned order dated 10-10-2018 is only tentative in natureand the amount of maintenance will finally be decided after recording ofevidence, therefore, it is not liable to be interfered with at this stage,while exercising constitutional jurisdiction. Reliance can be placed in thisregard on cases reported as Syed Saghir Ahmad Naqvi v. Province of Sindhthrough Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165),Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others(2014 SCMR 1365) and Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128)and Mst. Tahira and 4 others v. Muhammad Irfan and another (2018 MLD 407).

7. Forwhat has been stated above, the instant writ petition being without any meritsstands dismissed in limine.

8. Officeis directed to send a copy of this order to respondent No.1 for information.

MH/N-3/L Petitiondismissed.