دادا کن حالات میں پوتے پوتیوں کا خرچہ ناں و نفقہ ادا کرنے کا پابند ھے

 2021 CLC 1841

Whether a grandfather is obliged to pay maintenance to his grandchildren if the father is unable to do so.

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The grandfather is obligated to provide for maintenance of grandchildren if he is in easy circumstances and the father is dead or not traceable or is residing abroad or is impecunious or infirm and the mother is also down-and-out.

In Islamic law “maintenance” is termed as Nafaqah and signifies all those things which are necessary to support life, such as food, raiment and lodging. It is the legal and religious duty of a man to maintain his wife and children. The obligation to maintain wife is derived from the Holy Quran and is one of the incidences of marriage. It is not an ex gratia grant.

The wife’s right of maintenance is, however, subject to the condition that she is faithful and obedient to the husband and does not refuse herself to him unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves his house on account of his cruelty. 3Subject to the said condition, a divorced wife is entitled to claim maintenance from her husband for the time they remain in marital bond and also for the Iddat period.

The father’s obligation to maintain his children is separate and distinct from his duty towards the wife. Section 370 of the Principles of Mahomedan Law by D.F. Mulla sets out the legal position .

In the case of children, it may be pointed out, maintenance includes not only the provision of food, clothing and housing, but also other necessary expenses to promote their mental and physical wellbeing.

The right to fair trial is considered to be the bedrock of rule of law and is closely linked with human rights protection, more particularly the rights to life, liberty and property. According to some scholars, the right to fair trial is rooted in the twin cannons of natural justice, namely, nemo debet esse judex in propria causa (no one should be a judge in his own cause) and audi alterm partem (no one should be condemned unheard). The said right is now universally recognized as a norm of international human rights law. Universal Declaration of Human Rights, 1948, is of paramount importance as it is considered to be declaratory of the customary international law. However, there are other multilateral treaties like the International Covenant on Civil and Political Rights, 1966, and regional human rights instruments, including the European Convention for Protection of Human Rights and Fundamental Freedoms (European Convention), American Convention on Human Rights (American Convention) and African Charter on Human and Peoples' Rights (African Charter), which impose a binding obligation on the States who have ratified them to guarantee the aforesaid right to their people.

Pakistan is a constitutional democracy which rests on rule of law that in turn is pillared on fairness and due process. 10 The right to fair trial has always been the cornerstone of our judicial system but, in the year 2010, the Parliament enacted the Constitution (Eighteenth Amendment) Act, 2010, inter alia to insert Article 10A in the Constitution of Pakistan to elevate it to the status of an independent fundamental right guaranteed thereunder.