دادا کن حالات میں ناں و نفقہ ادا کرنے کا پابند ھے ~ Family Judgment & Case Laws

Parens patriae is a Latin term which means “parent of the country.” This doctrine postulates that the government is the ultimate guardian of all the people under a disability, especially children and mentally disordered persons. Parens patriae must be distinguished from the loco parentis (Latin for “in the place of a parent”) which refers to “a person who has put himself in situation of a lawful parent by assuming the obligations incident to parental relation without going through the formalities of legal adoption”. Lord Eldon says that “a person acting in loco parentis is in the situation of the person described as the lawful father of the child.” The doctrine of loco parentis is, for example, applied to authorize the educational institutions to act in the best interests of their students, and to allow a non-biological parent to exercise the rights and responsibilities of a biological parent.

 The doctrine of parens patriae has its roots in English Common Law. Rosara Joseph writes: “It is based on a Royal Prerogative antedating the Statute De Prerogativa Regis, enacted about the year 1339 in the reign of Edward II. Theobald speculates that by general assent or by some statute, the care of persons of unsound mind was taken by Edward I from the feudal lords, who would normally take possession of the land of a tenant unable to perform his feudal duties. In the 1540s, the parens patriae jurisdiction was transferred from officials in the royal household to the Court of Wards and Liveries. That Court was wound up in 1660, and the Crown’s jurisdiction was thereafter exercised through the Lord Chancellor and some of the Judges to whom it was entrusted under the Sign Manual.

The doctrine of parens patriae is widely applied in today’s world. Albeit, on principle, it is an inherent power, some countries supplement it by legislative acts.

The High Court’s jurisdiction in respect of children has three facets. The first is the conventional role which it performs when it adjudicates family disputes like those relating to maintenance and guardianship. Second, habeas corpus proceedings which may involve recovery of children from illegal or improper custody of a person. The third facet is where the court assumes the rights and duties of a parent itself. 

Hedaya is more elaborative. It says: “The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it (in the same manner as no person is admitted to be associated with a husband in providing for the maintenance of his wife), because the word of God, in the Koran, says, ‘the maintenance of the woman who suckles an infant rests upon him to whom the infant is born’ (that is upon the father), from which it appears that the maintenance of an infant child also rests upon the father, because, as maintenance is decreed to the nurse on account of her sustaining the child with her milk, it follows that the same is due to the child himself a fortiori.” The book further states that “a father and mother must provide a maintenance to their adult daughters (and also to their adult sons who are disabled), in proportion to their respective claims of inheritance. The maintenance to an adult daughter, or to an adult son who is disabled, rests upon the parents in three equal parts, two-thirds being furnished by the father, and one-third by the mother, because the inheritance of a father from the estate of his son or daughter is two-thirds, and that of a mother one-third. The compiler of the Hedaya remarks that this is the doctrine of Khasaf and Hasan.” 

Our courts have consistently held that maintenance of a minor child is primarily the father’s obligation. If he is indigent and incapable of earning his own labour, the responsibility lies with the mother if she is in easy circumstances. The grandfather becomes liable on two conditions: firstly, the father is impoverished and infirm and the mother is also hard up, and secondly, he (the grandfather) is in easy circumstances.