-Performance of conjugal rights by the spouses under such a marriage could not be termed as "unlawful sexual intercourse" so as to attract S.375, P.P.C. in order to initiate proceedings against them.

 PLD 2013 Lahore 243

Marriage of Muslim girl below sixteen years of age, who had otherwise attained puberty and consented to the marriage---Legality---Performance of conjugal rights by the spouses under such a marriage could not be termed as "unlawful sexual intercourse" so as to attract S.375, P.P.C. in order to initiate proceedings against them.

Habeas Corpus petition for recovery of detenue---

Complainant (father of alleged detenue) filed present petition for recovery of her daughter contending that she was a minor girl and accused was subjecting her to rape---Alleged detenue contended that she had attained puberty and contracted marriage with the accused out of her own free will and consent--Validity---Medical reports of alleged detenue revealed that she was between 14 and 15 years of age, therefore, it was established that she was below sixteen years of age at the time of her marriage with the accused---Medico-Legal certificate available on record showed that alleged detenue had developed all physical characteristics of having attained puberty---Marriage of a Muslim girl who was below sixteen years of age, but had attained puberty and was also a consenting party to the marriage, was valid for all intent and purposes---Relationship of accused with the alleged detenue could not be equated with rape in such circumstances---Alleged detenue claimed to have attained puberty and admitted her wilful Nikah with the accused and also deposed to accompany him---Petition for recovery of alleged detenue was dismissed, in circumstances.

S. 375(v)---Child Marriage Restraint Act (XIX of 1929), Ss.2(a) & (b)---Rape---Scope---Female under sixteen years of age admitting to having entered into marriage wilfully---Effect--Although S.375(v), P.P.C. provided that in case of sexual intercourse of a man with a girl under the age of sixteen years would amount to rape whether such act was committed with or without consent of such girl, but said section could not be made applicable to a case where the girl, though under sixteen years of age, admitted to having entered into marriage in explicit terms.

Words and phrases--- ----"Rape"---Definition. Block's Law Dictionary 6th Edn. ref

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It is settled principle that the Courts must aid the fair administration of justice by ensuring that litigation must come to an end by not allowing a litigant to agitate a particular ground and/or cause ...............

  It is settled principle that the Courts must aid the fair administration of justice by ensuring that litigation must come to an end by not allowing a litigant to agitate a particular ground and/or cause of action again and again, by filing successive applications, as the same amounts to abuse of process of law, causes hardship to the other side and runs counter to public policy that issue once decided and attained finality, cannot be reopened. Therefore, once order dated 24.10.2019 of the learned Executing Court was upheld by the learned Appellate Court below, the respondent cannot be allowed to agitate the same ground as such a leverage to a litigant to file successive applications defeats the principle of public policy discussed hereinabove. On another plain, this Court is cognizant of the fact that in case the judgments of the learned Courts below are at variance, preference should be given to the judgment of the learned Appellate Court below, more particularly, in family matters as held in case reported as "Mst. Farah Naz v. Judge Family Court, Sahiwal and others" (PLD 2006 SC 457). However, in view of the above discussion, this is a fit case for interference in constitutional jurisdiction by this Court as the learned Appellate Court below has acted without appreciating the material available on record. In fact, the learned Appellate Court below acted in excess of jurisdiction inasmuch as by passing the impugned order, the learned Appellate Court below has reviewed its earlier order dated 22.01.2020 whereby the learned Appellate Court below upheld the order of the learned Executing Court dated 24.10.2019 dismissing the claim of the respondent to receive alternate value of dowry articles. Jurisdiction to review its earlier order is not vested with the learned Appellate Court below. Therefore, the impugned order cannot sustain.

Family
22694/22
Muhammad Abu Sufyan Vs Additional District Judge etc
Mr. Justice Anwaar Hussain
06-02-2023
2023 LHC 560

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لاھور ہائیکورٹ کے جسٹس انوارالحق پنوں کا کم عمری کی شادی کے موضوع پر تفصیلی فیصلہ جس میں

PLD 2020 Lahore 811

  کم عمری کی شادی کے مضمرات،

موجودہ متعلقہ قوانین میں موجود نقائص،

موجودہ متعلقہ قوانین پر عملدرامد،

نکاح خواں کی ذمہ داریاں تفصیل سے بیان کی گئ ھیں

اور دیگر متعلقہ موضوعات پربھی تفصیلی بحث کی گئ ھے

Justice Anwaar ul Haq Pannu, Judge of Lahore High Court has delivered a very detailed judgment on child marriages, lacunas in the relevant law, and implementation of existing laws. His lordship has also pointed out the role of Nikah Khawans and in what circumstances their licenses can be canceled. Mr. Pannu has highlighted the side effects of child marriages as well.

PLD 2020 Lahore 811

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It is observed that during the judicial dispensation, it has oftenly been noticed that as a result of registration of criminal cases in respect of offences under Chapter XVI-A PPC while waging a plea of valid marriage having duly been registered under the Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as ‘the MFLO’) by one of the parties to the lis, generally contested by the other side or even in absence of registration of criminal cases, the grievance of illegal and undue harassment to the breach of fundamental rights of the aggrieved persons claiming valid marriage, at the hands of police at the behest of the parents, guardians or other relatives of the bride, is found to be voiced and by filing such petitions either the relief of quashing of FIR or issuance of a writ in the nature of prohibition is usually prayed for. Even, in certain cases upon a cursory inquiry it divulges that despite clear legal provisions specifying the eligibility with regard to age limit of the parties to the marriage, the acclaimed marriage is found as having been contracted by violating the provisions of the Child Marriage Restraint Act, 1929 (hereinafter to be referred as “the Act 1929”).

PLD 2020 Lahore 811

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It has further been noticed that some of the Nikah Khawans/Nikah Registrars instead of requiring any proof of age from the parties to the marriage which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School leaving Certificate, medical certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council etc, out of their petty temptations knowingly that one of the parties to the marriage is minor, proceed to rely upon a selfdeclaration of the concerned party in respect of his/their age at the time of registration of their marriage.

PLD 2020 Lahore 811

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Under the Muslim Law the competence of a girl to enter into a contract of marriage is dependent on the attainment of puberty. Puberty is presumed at the age of fifteen years. According to ‘Fatawa Alamgiri’, Page-93 of Vol-V, the lowest age of puberty according to its natural signs, is 12 years in males and 9 years in females and if signs do not appear, both sexes are held to be adult on the completion of their age of 15 years. The principle which after copying out from Fatawa Alamgiri and Hedaya can be deduced is that a girl even having not attained puberty but possessing discretion and sufficient understanding can enter into a contract of marriage however for its operation it will be dependent on the consent of the guardian, if there is one, but in the absence of any guardian it will take effect on her attaining of majority and ratifying the contract. According to Paragraph-274 of Mahomedan Law, “when a marriage is contracted for a minor by any guardian other than the father or father’s father, the minor has the option to repudiate the marriage on attaining the puberty. This is technically called the “option of puberty” (Khyar-ulbulugh). The right of repudiation of the marriage is lost, in the case of a female, if after attaining puberty and after having been informed of the marriage and of her right to repudiate it, she does not repudiate without reasonable delay. The Dissolution of Muslim Marriages Act, 1939, however, gives her the right to repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated. But in the case of a male the right continues until he has ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation.”

PLD 2020 Lahore 811

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At a number of occasions that despite a clear legal requirement of filling in each column of the Nikahnama individually, with specific answer of the parties to the marriage, the Nikah Registrar proceeds to place a single long vertical line against all or some of the columns which amounts to an offence liable to be punished under the law. Such criminal lapse/acts of the Nikah Registrar or the parties, as the case may be, despite being a source of breach of rights of the parties to the marriage are randomly ignored. The unscrupulous elements while taking advantage of such omissions or lapses try to exploit the situation and create serious future complications for the others.

PLD 2020 Lahore 811

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It may be relevant to observe that in view of section 21 of the Pakistan Penal Code, 1898, Nikah Registrar is deemed to be a ‘Public Servant’ for criminal prosecution. The status of Nikah Registrar is that of a licensee. He does not fall within the definition of an employee as provided under Section 2(h) of the PEEDA (Punjab employees, efficiency and discipline) Act 2006, therefore, in case of any contravention with any of the provisions of law or violation of any of conditions of the licence, subject to notice, his licence can be revoked/ cancelled by the Union Council.

PLD 2020 Lahore 811

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A deterrence of punishment for violation of the provisions of Child Marriage Restraint Act, 1929 has been created. It is quite vivid that the act does not hold the minor responsible for violation of the provision of the Act 1929. It also does not invalidate the marriage itself. It only,, holds certain categories of persons liable for the violations of the provisions of the Act 1929. Under Section 2(a) of Act 1929, child has been defined ‘a person, if male, under 18 years of age and if female, under 16 years of age.

PLD 2020 Lahore 811

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The trial of the offence under the provisions of the Child Marriage Restraint Act, 1929 is to be held by a Family Court exercising the powers of a Judicial Magistrate of the first class in accordance with the Provisions of Family Courts Act, 1964 (XXXV of 1964).

PLD 2020 Lahore 811

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The registration of the marriage shall be in accordance with the provisions of the Ordinance and the Rules. For registration of Nikah/marriage, the Union Council has been authorized to issue a license to one or more persons who are fit and proper to solemnize the Nikah, on his/their application who are called as Nikah Registrars. The Nikah Registrar is under obligation to fill in accurately every column of the Nikahnama individually with specific answers of the bride and the bridegroom. Any violation/contravention with the provisions of the Ordinance is punishable with simple imprisonment and fine. The record of the marriage in respect of marriage registration is to be maintained by the Union Council. The copy of Nikahnama shall be supplied to the parties.

PLD 2020 Lahore 811

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It is a matter of great concern that despite ninety years of the promulgation of the Act, 1929, its objectives could not have been achieved satisfactorily due to certain lapses or loopholes in the mechanism for its enforcement. The children are still being lured by unscrupulous elements through deceitful means to abuse their innocent souls. It is also relevant to point out that although under The Majority Act, 1875 (Act XX of 1875) (hereinafter known as ‘Majority Act’) a person is said to attain majority at the age of eighteen years. However, in case of appointment of his guardian by the Court, the age of majority of such a Ward is twenty-one years. The application of the above provisions has however been excluded insofar as the operation of personal law in respect of marriage, divorce and dower is concerned. Every other person, subject to as aforesaid, domiciled in Pakistan shall be deemed to have attained his majority on completion of his age of eighteen years, and not before. A Muslim though under 18 years on attaining puberty, can bring a suit relating to marriage, dower and divorce without next friend.

PLD 2020 Lahore 811

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Directions issued to Nikah Registrars

(1) All the Nikah Registrars or other persons, who solemnize marriages are under legal obligation to scrutinize the credentials at the time of Nikah as to whether the marriage is solemnized with the free will of the parties and no child is exposed to marriage. Mere submission of oral entries for the purpose of age should not be accepted unless any proof of age from the parties to the marriage preferably which should be in the shape of some authentic document either issued by the NADRA in the form of National Identity Card, B-Form or School Leaving Certificate, Medical Certificate based on ossification test issued by the competent authority and the Birth Certificate validly issued by the Union Council, etc. is produced.

(2) Furthermore, after perusing the record in compliance with SOP (ii) mentioned in para 17, in case the Authority fails to take the requisite action, it will be deemed that he himself has willfully failed to perform his function/duty amounting to negligence rendering himself liable for initiation of disciplinary proceedings against him under the relevant law.

PLD 2020 Lahore 811

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S. 25-A---Transfer of Family case---Convenience of female and chil dren---Scope---Both wife and husband instituted suits at different places--

 S. 25-A---Transfer of Family case---Convenience of female and chil dren---Scope---Both wife and husband instituted suits at different places---Wife filed an application for transfer of case of husband at the place where her suit was pending---Validity---Husband had filed suit at place "X" prior to the institution of suit of wife at place "Y"---Court should see the convenience of female and chil dren while deciding transfer application---Wife was Parda observing lady having two chil dren who had to look after both of them---Husband could undergo hardship but lady and Suckling baby could not bear the same---Distance between two places was so far that wife along with her babies could not travel and appear before the court at place "X" easily---Family cases should be tried by one and the same court at the place where wife was residing to avoid any conflicting judgment---Suit filed by husband was withdrawn and entrusted to the Family Court at place "X" for adjudication in accordance with law---Application for transfer of case was accepted in circumstances.

2015 MLD 708
PESHAWAR-HIGH-COURT
Side Appellant : Mst. SHABANA BEGUM
Side Opponent : NAEEM-U-DIN

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Suit for maintenance allowance was decreed--Concurrent findings--Statement of respondent No. 3 was not cross-examined by petitioner--Liability of father of minor children-

 PLJ 2023 Lahore (Note) 26

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for maintenance allowance was decreed--Concurrent findings--Statement of respondent No. 3 was not cross-examined by petitioner--Liability of father of minor children--Challenge to--Respondent No. 3 in her suit made a categorical assertion that she was expelled from
house by petitioner--This statement was not cross-examined by petitioner--Judge family Court, rightly, granted maintenance allowance--Petitioner is father of minor children and, is liable to maintain them--Maintenance allowance awarded by Courts below does not call for any interference--Petition dismissed.

                                                                                      [Para 4] A & B

PLD 2018 SC 819 ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--High Court in exercise of its constitutional jurisdiction does not act as an appellate Court and all that is required from High Court is to oversee jurisdictional errors committed by inferior Courts.                                                                             [Para 5] C

M/s. Mushtaq Ahmad Dhoon and Ms. Naila Mushtaq Dhoon Advocates for Petitioner.

Date of hearing: 29.6.2022.

 PLJ 2023 Lahore (Note) 26
Present: Shams Mehmood Mirza, J.
MUHAMMAD AMIN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, FAISALABAD and 4 others--Respondents
W.P. No. 41183 of 2022, decided on 29.6.2022.

Order

This writ petition calls into question concurrent findings of fact recorded in the judgments rendered by both the Courts below in a family suit instituted by Respondent No. 3.

2. The facts of the case have already been mentioned with sufficient clarity in the judgments impugned in this writ petition and shall not, therefore, be reiterated here. Suffice it to state that the judge family Court allowed maintenance allowance at the rate of Rs. 10,000/- per month each to the minor children from 11.05.2015 and also allowed recovery of dowry articles as per the terms mentioned in judgment dated 05.03.2022. The appeal filed by the petitioner was dismissed on 31.05.2022.

3. Learned counsel submits that the financial resources of the petitioner were not taken into account while passing the order for maintenance allowance. It is furthermore submitted that the past maintenance allowance could not be allowed in view of the evidence of Respondent No. 3.

4. Respondent No. 3 in her suit made a categorical assertion that she was expelled from the house by the petitioner on 11.05.2015. This statement was not cross-examined by the petitioner. The judge family Court, therefore, rightly, granted maintenance allowance from 11.05.2015. In regard to the quantum of maintenance allowance, suffice it to state that the petitioner did not furnish any proof before the Court regarding the quantum of his earning. In judgment reported as Muhammad Asim and another v. Mst. Samro Begum and others PLD 2018 SC 819, the Hon’ble Supreme Court has held that a husband is required to disclose before the Court his present and past earnings as it is his financial status that determines the amount of maintenance to be awarded. It was further held in the said judgment that in case of non-disclosure, an adverse inference can be drawn against husband. The petitioner is father of the minor children and, therefore, is liable to maintain them. In the fact and circumstances of the case the maintenance allowance awarded by the Courts below does not call for any interference. The same is the case with the claim for dowry articles.

5. The grounds challenging the judgment passed by the judge family Court have already been taken before the first appellate Court, which has exhaustively dealt with them and found no legal infirmity therein. This Court in the exercise of its constitutional jurisdiction does not act as an appellate Court and all that is required from this Court is to oversee the jurisdictional errors committed by the inferior Courts. This Court on perusal of the record is satisfied that judgments rendered by both the Courts below do not suffer from any mis-reading and non-reading of evidence. This writ petition being devoid of any merit is accordingly dismissed.

(Y.A.)  Petition Dismissed

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After insertion of the word "Guardianship" in the First Schedule of The West Pakistan Family Courts Act, 1964, the remedy by way of appeal is available against an order under Section 12 of the Guardians and Wards Act, 1890.......................

 After insertion of the word "Guardianship" in the First Schedule of The West Pakistan Family Courts Act, 1964, the remedy by way of appeal is available against an order under Section 12 of the Guardians and Wards Act, 1890 although earlier, as per Section 47 of the Act, 1890, the right of appeal was not available. It has been further held that plain reading of Section 12(1) of the Act, 1890 indicates that the overarching and controlling position held by the welfare of a minor in granting his permanent custody under Section 25 of the Act, 1890 is equally applicable to the grant of interim custody under Section 12 of the Act ibid and it will defeat the legislative intent and object of the law if the paramount interest of welfare of a minor is considered supreme and dominant feature only at the time of deciding application under Section 25 of the Act and not so at the time of deciding an application under Section 12 thereof. Thus, the welfare of a minor is always to be controlling force at every stage and decision made under Section 12 of the Act, 1890 is no exception. In the instant case, the respondent/father was allowed to retain the custody of the minor, who was admittedly of tender age of four years, which has been held not to be in best interest of the minor inasmuch as the minor of such tender age, at an interim stage, should not be deprived from the love and care which a mother can extend since such deprivation has far reaching impact on mental and physical upbringing of the minor, which is not the object of Section 12 of the Act, 1890.

Family 36910/22
Ayesha Tahir Vs ADJ Lahore etc
Mr. Justice Anwaar Hussain
19-01-2023
2023 LHC 434

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-Suit for recovery of maintenance allowance--Decreed--Deprivation from previous maintenance allowance--Suckling baby--

 PLJ 2023 Lahore 154

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance--Decreed--Deprivation from previous maintenance allowance--Suckling baby--Modification in judgment--Entitlement of petitioner for maintenance allowance for period of feeding of minor--Enhancement in maintenance allowance--Challenge to--After separation, lady can live in house of her ex-husband for purpose of feeding in case she had a suckling baby, within limits prescribed by Almighty Allah--Maintenance of mother who had been feeding a child cannot be stopped in any way--Neither child nor lady can be deprived from maintenance allowance in any away--Judgment and decree passed by Judge Family Court, is modified to extent that Plaintiff No. 1 is held entitled for maintenance allowance for period in which she had been feeding minor--Plaintiff had been feeding minor till 13.07.2014 and for that period Respondent No. 2 is duty bound to pay maintenance allowance to plaintiff--Judge Family Court has rightly fixed maintenance allowance of plaintiffs--Petition partially allowed.

                                                             [Pp. 159 & 160] A, B, C, D & E

Civil Procedure Code, 1908 (V of 1908)--

----S. 151--Jurisdiction of Family Court--Family Court has exclusive jurisdiction to pass an order on application for enhancement of maintenance allowance even after passing final judgment and decree.       [P. 160] F

2016 SCMR 1821 ref.

Miss Kashwar Naheed, Advocate for Petitioners.

Ex-parte for Respondent.

Date of hearing: 13.1.2022.

 PLJ 2023 Lahore 154
Present: Safdar Saleem Shahid, J.
Mst. FARIDA BIBI etc.--Petitioners
versus
JUDGE FAMILY COURT etc.--Respondents
W.P. No. 18625 of 2016, heard on 13.1.2022.

Judgment

Through instant constitutional petition, the petitioners seek enhancement of maintenance allowance, partly decreed by learned Judge Family Court, Sheikhupura, vide judgment and decree dated 15.09.2015.

2. The brief facts of the family litigation are that Mst. Farida Bibi Petitioner No. 1 and Muhammad Shahid Respondent No. 2 were married on 24.03.2011, Out of this wedlock Ammara Shahid Petitioner No. 2 was born. Differences between the parties arose and ultimately the petitioner filed the suit for past and future maintenance allowance at the rate of Rs. 30,000/- per head per month. The respondent appeared before the Court and submitted his contesting written statement. Consequently, learned trial Court vide judgment and decree dated 15.09.2015 partly decreed the suit for recovery of maintenance allowance and Petitioner No. 1 was held entitled to maintenance allowance at the rate of Rs. 15000/- only for the period of “Iddat” whereas Petitioner No. 2/minor was held entitled to maintenance allowance at the rate of Rs. 5,000/- per month from the date of effectiveness of divorce between the spouses till marriage of Respondent No. 2 (minor) with 10% annual increase. Against the
said judgment and decree the petitioners preferred instant writ petition before this Court for enhancement of maintenance partly decreed by learned Judge Family Court Sheikhupura. Hence instant writ petition.

3. The issues No. 1 & 2 were relating to maintenance allowance of the minor and the lady regarding the past as well as future period which were inter-related and inter-connected, hence the same were decided by learned trial Court simultaneously. The learned trial Court discussed the evidence of the parties and apprised that since the lady had left the house of the respondent alongwith minor out of her own will, therefore, she was not entitled to recover the past maintenance allowance. It was further held by the learned trial Court that the petitioner/lady has neither mentioned any specific ground nor mentioned specific date or month when she was expelled and the respondent had not been giving the monthly allowance to her. Relying on these observations, the lady was deprived from her previous maintenance allowance however, she was held entitled the maintenance allowance only for the period of “Iddat” as she was divorced by the respondent and divorce was effected between the spouses on 30.06.2014 vide Exh.D-4. The learned trial Court fixed the maintenance allowance of the minor at the rate of 5000/- per month from the date of divorce between the spouses till the marriage of Respondent No. 2 (minor) with 10% annual increase. The petitioner/plaintiff agitated the judgment and decree in question through instant writ petition as no other remedy was available to the petitioner with the version that the learned Judge Family Court has not decided the issues in accordance with law. It was argued by learned counsel for the petitioner/plaintiff that non-mentioning of exact date of desertion would not disentitle the petitioner from her past maintenance allowance as well as of the minor daughter of the petitioner. It was further argued by learned counsel that maintenance allowance of the minor has not been fixed by the learned trial Court in view of financial status of the respondent as the respondent was serving in Saudi Arabia and he was earning more than Rs. One lac and in this regard the petitioner produced cogent evidence regarding his source of income. It was further contended that the minor is now grown up and studying in a school and her average monthly expenditure on account of school fees, uniform, Qari Sahib fee, transport, foods and other necessities etc are higher than the maintenance allowance due to rise in inflation.

4. The respondent was summoned through summons in accordance with law but inspite of the same he did not appear; consequently he was proceeded against ex-parte.

5. Arguments heard. Record perused.

6. It has been noticed that there are many legal as well as Shari questions before this Court which are being discussed as under:-

1.       Whether the lady/plaintiff having a suckling baby with her can be deprived from the maintenance allowance?

2.       Whether the maintenance allowance of the minor can be waived by the mother or any of the blood relative?

Since very important Shari questions were involved in the instant case, therefore, learned Assistant Advocate-General was appointed as amicus curiae in order to assist this Court.

7. Perusal of record reveals document Exh. D-I is available on file which shows that an agreement/Punchayat Nama was entered into between the parties where the father of the Petitioner No. 1 had signed the said document in view of its correctness. The contents of said agreement/Punchayatnama is reproduced as under:

یہ کہ میں مسماۃ فریدہ بی بی دختر شاہ محمد حلفیہ بیان کرتی ہوں کہ میں بچی عمارہ دختر محمد شاہد کے کسی قسم کے خرچہ کا مطالبہ نہ کروںگی۔ عمارہ کو رو برو گواہان محمد شاہد کی والدہ سے حاصل کر لی ہے ۔مورخہ 16.03.2004

The aforesaid document was written on 16.03.2015 which was signed and thumb marked by the father of the petitioner namely Shah Muhammad. The petitioner/plaintiff in her statement while appearing as PW-1 has specifically refused that she had ever signed any such document.. During cross-examination she deposed that she had no knowledge regarding execution of Exh. D-1 however, she had signed and thumb marked a blank paper. She further deposed that her father Shah Muhammad had signed the document Exh. D-1 and also thumb marked. The right of the minor cannot be waived by the mother or any of the blood relative. Allah has specifically fixed the responsibility of the minor (suckling baby) to the father. The mother has been given responsibility of feeding the child, whereas the father, if the father is not alive or in a position not to pay the maintenance, then the responsibility will be shifted to mother, if can bear it or to the other family members as given in Section 370 of Muhammadan Law which is reproduced as under:

370. Maintenance of Children and Grand Children.--(1) A Father is bound to maintain his sons until they have attain the age of majority. 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 incapable of earing 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 petitioner 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.

Even this particular document Exh. D-1 will not disentitle the minor from her Shari right of maintenance allowance. Here I will quote the Verse 233 of Surah Al-Baqara:

 

 

 

 

 

اور مائیں دودھ پلائیں اپنے بچوں کو (ف۴۶۶) پورے دو برس اس کے لئے جو دودھ کی مدت پوری کرنی چاہئے (ف۴۶۷) اور جس کا بچہ ہے (ف۲۲۸) اس پر عورتوں کا کھانا پہننا ہے حسب دستور (ف۴۶۹) کسی جان پر بوجھ نہ رکھا جائے گا مگر اس کے مقدور بھر ماں کو ضر ر نہ دیا جاۓ اس کے بچہ سے (ف۴۷۰) اور نہ اولاد والے کو اس کی اولاد سے (ف۴۷۱) یاماں ضرر نہ دے اپنے بچہ کو اور نہ اولاد والا اپنی اولاد کو (ف۴۷۲) اور جو باپ کا قائم مقام ہے اس پر بھی ایساہی واجب ہے پھر اگر ماں باپ دونوں آپس کی رضا اور مشورے سے دودھ چھڑانا چاہیں توان پر گناہ نہیں اور اگر تم چاہو کہ دائیوں سے اپنے بچوں کو دودھ پلواؤ تو بھی تم پر مضائقہ نہیں جب کہ جو دینا ٹھہرا تھا بھلائی کے ساتھ انہیں ادا کر دو ،اور اللہ سے ڈرتے رہو اور جان رکھو کہ الله تمہارے کام دیکھ الله رہا۔ (233)

The wisdom mentioned in the aforesaid Verse of Surah Al-Baqara is that father is solely responsible to maintain the minor as well as the lady who is feeding his child. The document Exh. D-1 could be used for any other purpose but not to deprive the minor from her maintenance allowance and the lady who had been feeding the minor. It is legal as well as moral right of every minor/child that he be brought up in healthy atmosphere and be brought up with the feelings of self-respect alongwith educational necessities and it is duty of the father to bring up his children as per his financial status. Although learned Judge Family Court has not relied upon the document Exh. D-I but on the other hand, the learned Judge Family Court had deprived the lady/ mother of the minor from the maintenance allowance regarding the period of feeding of the minor. It is settled principle of law that nobody/parents or any blood relative can waive the right of any minor regarding his maintenance allowance which has been given by ‘Shariah’. So the document Exh. D-I has no legal value in the eyes of law and same is against the spirit of Islamic Rules, therefore, it would not create a hurdle for the fixation of maintenance allowance for the past and future of the minor as well as to the lady. Admittedly the marriage between the parties was solemnized on 24.03.2011 whereas minor daughter was born on 13.01.2012. According to the version of the petitioner/lady taken by her in plaint, she left the house of the respondent one year prior to the institution of the suit. The suit was filed on 24.07.2014, meaning thereby the lady left the house of the respondent on 24.07.2013. Mark DB dated 24.03.2014 is an important document (Talaq Nama) which was tendered by the respondent wherein it was admitted by the respondent that six months prior the lady had gone to her parents house, if said period is calculated, it means that the petitioner/lady had left the house of the respondent on 24.09.2013 whereas the petitioner/lady has claimed that she had left the house of her husband on 24.07.2013. So there is no a big difference in the dates regarding the leaving of the house of the petitioner from her husband’s house/respondent. It is clear indicative of the fact that she was residing with her parents after the aforesaid dates and during the said period neither she was paid the maintenance allowance nor the minor. The question before this Court is that a disobedient lady living separately without any reason should be refused to pay the maintenance allowance for that period she had not performed her matrimonial obligations but here this is a different situation. She had been feeding the minor during the said period. In these circumstances, the father of the minor was under obligation to provide the maintenance to the lady who was feeding his child as per Holly Verse 233 of Surah Al-Baqara: So the learned Judge Family Court has not kept in view the entitlement of the lady for having the previous maintenance allowance on this score which was very important. In all circumstances, the welfare of the miner is the supreme, though she had left the house herself or she was expelled from the house as she had been feeding the minor and maintaining his suckling baby. As per ‘Sharia’ the father is duty bound to maintain his wife who was feeding his child. This principle is established from the traditions of Arabic societies where the children were handed over to the ladies (foster mothers) for feeding and they were paid penny/reward for feeding purpose. It is also a principle that even after separation, the lady can live in the house of her ex-husband for the purpose of feeding in case she had a suckling baby, within the limits prescribed by Almighty Allah. Meaning thereby, the maintenance of the mother who had been feeding a child cannot be stopped in any way, however, after that period the Court can assess the evidence adduced by the parties and then can pass the appropriate order regarding the maintenance allowance. In the instant case, the lady had been feeding the child, therefore, neither the child nor the lady can be deprived from the maintenance allowance in any away. This Court has reason to believe that the learned Judge Family Court has not taken into consideration this aspect of the matter. The judgment and decree dated 15.09.2015 passed by learned Judge Family Court, Sheikhupura is modified to the extent that the Plaintiff No. 1 Mst. Farida Bibi/lady is held entitled for maintenance allowance for the period in which she had been feeding the minor. Under the Islamic Rules, the feeding period has been fixed by the Fiqa as 2½ years. Prima facie, the Plaintiff No.1/lady had been feeding the minor for the period of 2½-years. Ammara Shahid minor was born on 13.01.2012 and if the aforesaid period is calculated, then it comes on record that the plaintiff/lady had been feeding the minor till 13.07.2014 and for that period the Respondent No. 2 is duty bound to pay the maintenance allowance to the plaintiff/lady. As discussed above the admitted dates of desertion of plaintiff-lady from the house of the respondent was noted as 24.07.2013 & 24.09.2013, therefore, the plaintiff-lady is held entitled for the past maintenance allowance at the rate of Rs. 5,000/- per month (which was fixed by learned Judge Family Court for minor) w.e.f 24.07.2013 to 13.07.2014 with 10 % annual increase. The maintenance allowance of the plaintiff-lady for the period of Iddat fixed by learned Judge Family Court is upheld. So far as contention of learned counsel for the petitioners that maintenance allowance of the plaintiffs/petitioners was not fixed by the learned trial Court keeping in view the financial status of the respondent is concerned, I have gone through the whole evidence which shows that no such reliable document regarding the monthly income of the respondent was produced before the learned trial Court. Keeping in view the evidence available on record, the learned Judge Family Court has rightly fixed the maintenance allowance of the plaintiffs. As far as the contention of learned counsel for the petitioners for enhancement of maintenance allowance on the ground of daily growing requirement of the minor is concerned, suffice it to say that the Family Court has exclusive jurisdiction to pass an order on the application for enhancement of the maintenance allowance even after the passing the final judgment and decree. Reliance in this regard can be placed on the case titled Lt. Col. Nasir Malik vs Additional District Judge Lahore (2016 SCMR 1821) in which the Hon’ble Supreme Court of Pakistan held as follows:

“Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith.

Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S.151,C.P.C) and if necessary make alteration in the rate of maintenance allowance”

In these circumstances, the petitioners may move the application for enhancement of maintenance allowance of the minor before the Court of competent jurisdiction.

8. For what has been discussed above, instant petition is partly accepted and impugned judgment and decree dated 15.09.2015 passed by learned Judge Family Court is modified to the extent that the plaintiff-lady is held entitled for the past maintenance allowance at the rate of Rs. 5,000/- per month (which was fixed by learned Judge Family Court for minor) w.e.f 24.07.2013 to 13.07.2014 with 10% annual increase. The maintenance allowance of the minor and the plaintiff-lady for the period of Iddat fixed by learned Judge Family Court is upheld. There is no order as to costs.

(Y.A.)  Petition partially allowed

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Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Act. The definition of „guardian‟ in section 4(2)............

 Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Act. The definition of „guardian‟ in section 4(2) seems to include the concept of custody, unless the same has been exclusively awarded by the court to a party who is not the guardian of a minor. Custody under the Act involves a right to upbringing of a minor. On the other hand, guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child. A father is considered to be a natural guardian of a minor, since even after separation with the mother, and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor. The liability to maintain the minor is not only religious and moral but also is legal. The right of custody of father is subordinate to the fundamental principle i.e. welfare of the minor. Maintenance of child is the duty of father and the mother cannot be deprived of custody due to her inability to maintain the child for lack of resources.

Unless there is something repugnant in the subject or context, section 4 of the Act defines the 'Minor' to mean a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his Majority; the 'Guardian‟ to mean a person having the care of the person of a minor or his property, or of both his person and property and the „Ward‟ to mean a minor for whose person or property or both there is guardian. As evident from its preamble, the FCA 1964 has been enacted for the establishment of Family Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. Subject to the Muslim Family Laws Ordinance and the Conciliation Courts Ordinance, 1961, exclusive jurisdiction has been conferred upon the Family Courts to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the FCA 1964. These subject matters include custody of children and the visitation rights of the parents to meet them as specified in Entry No.5 of Part I of the said Schedule whereas the matters of Guardianship are also stipulated in Entry No.6 thereof. Section 25 of the FCA 1964 deems the Family Court to be a District Court for the purposes of Guardians and Wards Act, 1890. Barring a few exceptions specified in sub sections (4) and (5) of section 1 of the FCA 1964, jurisdiction of the Family Court over matters of custody is exclusive and no other Court including the Guardian Judge has any jurisdiction to deal with such matters.

The main crux of the MHO 2001 essentially relates to psychiatric facility and management of property of the mentally disabled persons and appointment of guardian under the MHO 2001 is in that context. The dispute inter se parents of a minor for his or her custody and/or guardianship is manifestly not a subject matter of the MHO 2001, which falls within the exclusive domain of Family Court even when the minor suffers from any disability. Therefore, the provisions of MHO 2001 do not contradict and repeal the provisions of section 5 read with items No. 5 & 6 of the Schedule to the FCA 1964 to take away jurisdiction of the Family Court in disputes amongst parents regarding guardianship and/or custody of minors who are suffering from any mental disability.

The overriding effect of the MHO 2001, as provided in section 60 thereof, is again limited to cases of conflict, which is not the case here since the dispute in the instant case involves custody of the minor amongst her parents and Wania is not claimed to be in possession of any property.

W.P. No.41017 of 2022
Saima Nazir Versus Guardian Judge (IV), Lahore and another
03-02-2023

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