- Maintenance of minor Grandfather , obligation of --- Scope --- Decree for maintenance of minor passed against the father of a child by the Fami Court --

 PLD 2024 Supreme Court 67
BASHIR AHMAD versus ADDITIONAL DISTRICT JUDGE , HAFIZABAD and others ---

--- Maintenance of minor Grandfather , obligation of --- Scope --- Decree for maintenance of minor passed against the father of a child by the Fami Court --- Such decree cannot be executed against the grandfather --- Child has to institute a suit for maintenance against his grandfather , in case no property of his father , the judgment debtor , is found for the execution of the decree .

Under the Islamic law of maintenance of the children , if the father of a child has died or the father , being a poor person , has no financial resources to maintain his child , the obligation to maintain such child passes on to his grandfather provided he is financially in easy circumstances . Thus , obligation of a grandfather to maintain his grandchild is dependant upon two conditions : (i) the father of the child must be a poor person who has no financial resources to maintain that child , and (ii) the grandfather of the child must be a person who is financially in easy circumstances . In case either of these conditions is not fulfilled , the grandfather is not under any obligation to maintain his grandchild . These two conditions are thus also the grounds of defence available to a grandfather against whom his grandchild makes a claim of maintenance . The grandfather must be provided with an opportunity to defend the claim made against him by rebutting the existence of either of these two facts . This is the requirement of the fundamental right guaranteed by Article 10A of the Constitution of Pakistan , which mandates that for the determination of his civil rights and obligations , a person shall be entitled to a fair trial and due process .

The matter of providing maintenance to his grandchild is a matter of civil obligation ; for its determination , the grandfather must be provided with a fair trial and due process . Both the above conditions , the fulfillment of which brings a grandfather under obligation to maintain his grandchild , are factual propositions , not legal ones . Their existence or non - existence can , therefore , only be proved through producing their respective evidence by the parties in a properly instituted suit for maintenance . Such evidence cannot be recorded in the execution proceeding nor can any determination be made therein by the executing court on these facts . The recording of evidence and making of findings on these facts in an execution proceeding would be a useless exercise , as despite making a positive finding , an executing court cannot modify the decree nor can it execute the decree against a person who was not a party to the suit . Further , the Family Courts Act , 1964 prescribes a procedure for how the claims of maintenance are to be entertained and decided by the Family Courts . Such a claim made against a grandfather operates against his property ; he is , therefore , entitled to be dealt with the procedure prescribed by law , i.e. , the Family Courts Act , as per Article 4 of the Constitution . Therefore , a decree for maintenance passed against the father of a child cannot be executed against the grandfather , and the child has to institute a suit for maintenance against his grandfather , in case no property of his father , the judgment debtor , is found for the execution of the decree .

In the present case , the petitioner ( grandfather ) was neither a party to the suit instituted by his grandchild against his father nor was any decree passed against him . A decree that was not passed against the petitioner cannot be executed against him or his property . The order , whereby the executing court attached the property of the petitioner , and the order , whereby his application for the release of the attached property was dismissed , both are illegal . Petition for leave to appeal was converted into appeal and allowed accordingly with the observation that the minor decree - holder , if so advised , is at liberty to institute a suit for maintenance against the petitioner , his grandfather , in accordance with the law , and if such a suit is instituted , the Family Court may make an appropriate order for interim maintenance of the minor at an appropriate stage of the suit if it is satisfied that the two conditions which make a grandfather liable for providing maintenance to his minor grandchild are prima facie fulfilled .