باپ بیٹی کی تعلیم کے اخراجات ادا کرنیکا پابند ہے ~ Pakistan Family Law Case Laws

Whether a Muslim father is under an obligation to pay the expenses incurred on education of his daughter/children or whether maintenance of child includes educational expenses?

EVALUATING THE SCOPE OF TERM “MAINTENANCE”

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The important question that needs determination is “whether a Muslim father is under an obligation to pay the expenses incurred on education of his daughter/children or whether maintenance of child includes educational expenses? In order to answer this question, it is necessary to examine the definition of the term "maintenance."

In Pakistan, issues related to child maintenance are dealt with by the Muslim Family Laws Ordinance, 1961, and the West Pakistan Family Courts Act, 1964. However, these laws do not provide a specific definition for "maintenance." For better understanding it is suitable to rely on the dictionary meaning of the term.

The word “maintenance” is derived from Arabic word “Nafaq” which means “to spend” and in literal sense, the word “nafaqa(نفقہ) means what a person spends on his family.

The word “maintenance” has been defined in Black’s Law Dictionary, as under:

“Financial support given by one person to another.”

It has been defined in Section 369 of the Principles of Muhammadan Law by D.F Mulla in following words:

“369. Maintenance defined.—“Maintenance” in this Chapter includes food, raiment and lodging.”

Such definition of maintenance is not exhaustive. The word "includes" is generally used in interpretation clauses in order to enlarge the meaning of words or phrases, occurring in the body of the Statute; and when it is so used those words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.

In this view of the matter, it does not exclude other necessary expenses for mental and physical well-being of a minor. This view is also fortified by the judgment in Arslan Humayun and another wherein it was held that Section 369 ibid has a wider connotation and should be given an extended meaning, for the purposes of social, physical, mental growth, upbringing and wellbeing of the minor.

LEGAL FRAMEWORK OF MAINTENANCE - ISLAMIC LAW

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Undeniably, the Almighty Allah is the only sustainer, but, He has created means through which this task is accomplished. Bearing the expenses of children is the second most important task of the father.

In Islamic law “maintenance” is termed as Nafaqah (نفقہ) and signifies all those things which are necessary to support life. It is the legal and religious duty of a man to maintain his wife and children.

The obligation to maintain wife and children is derived from the Holy Quran and is one of the incidences of marriage. Verse 233 of Surah Al-Baqarah says:

“…and it is incumbent upon him who has begotten the child to provide in a fair manner for their sustenance and clothing.”

Furthermore, Verse 34 of Surah An-Nisaa enjoins:

“Men are the protectors and maintainers of women because God has given the one more (strength) than the other and because they support them from their means.”

Thus, right of child to be maintained by the father is ordained by Islamic law as mentioned above.

Similarly, under Pakistani law, the maintenance of a child is an obligation primarily upon the father. The Family Courts Act 1964 and the Muslim Family Laws Ordinance 1961 (“MFLO”) deal with the issue of maintenance of minors in Pakistan.

LEGAL FRAMEWORK OF MAINTENANCE- INTERNATIONAL LAW

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All the civilized nations of the world have recognised that children have rights by virtue of being children. These obligations are also erga omnes and have since been codified in the United Nations Convention on the Rights of the Child, 1989 (the “UNCRC”). UNCRC is an international treaty which sets out the rights of children. The State of Pakistan ratified the UNCRC on 12.11.1990 with its only reservation that its Articles will be interpreted in light of Islamic injunctions. However, in 1997, this reservation was withdrawn, thus, ratification became absolute.

The concept of the “child's best interests” is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, 1979, as well as in regional instruments and many national and international laws.

When assessing and determining the best interests of a child the obligation of the State to ensure the child such protection and care as is necessary for his or her well-being should be taken into consideration. Children’s well-being, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as needs for affection and safety.

It is in the best interests of the child to have access to quality education, including early childhood education. All decisions on measures and actions concerning a specific child must respect the best interests of the child or children, with regard to education.

The above discussion leads us to draw a conclusion that it would be absolutely safe to include educational expenses also within the concept of maintenance of a child.

Although petitioner/father is not bound to provide the maintenance for education at higher levels ad infinitum however, he is duty bound to provide maintenance to Respondent No.4 till she completes her graduation studies and gains an employment to support herself.