چچا کیخلاف دعوی نان ونفقہ دائر نہ ہو سکتا ہے

 Muhammadan Law by D.F. Mulla is neither a statute nor a custom or usage, therefore, not binding on Courts. Claim of maintenance from grandfather and paternal uncle is on different principles of Islamic Jurisprudence, hence paternal uncle could not replace the grandfather, as defendant, after his death.

PLJ 2024 Lahore 135
Present: Shahid Jamil Khan, J.
MAHNOOR SHABBIR--Appellant
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 62482 of 2022, decided on 12.12.2023.

Muhammadan Law--

----Para 337--Constitution of Pakistan, 1973, Art. 199--Suit for maintenance--Decreed--Appeal--Allowed--Paternal uncle--Distant relative--Inheritance of paternal uncle--Poor instant relative--Counsel for petitioner was asked whether Section 373 of Muhammadan Law is a statutory provision, answer was in negative--He was also asked to produce any judgment where decree of maintenance against distant relative is issued on basis of Section 373, he could not produce-- The petitioner could not establish before Appellate Court that she would get inheritance from estate of respondent on his death--Petitioner could not prove herself to be poor distant relative--The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence--If suit was filed to claim maintenance from grandfather after death of father, paternal uncle could not have been replaced as defendant in shoes of grandfather--Petition dismissed.

[Pp. 137, 138 & 139] A, B, C & D

PLD 2021 FSC 1.
M/s. Waqas Umer Sial, Ch. Muslim Abbas and Abbas Sheheryar Chaudri, Advocates for Petitioners.
Nemo for Respondents.
Date of hearing: 12.12.2023.

Judgment

Petitioner has assailed judgment dated 08.06.2022 passed by Additional District Judge, Lahore, exercising appellate jurisdiction, whereby suit of the petitioner for maintenance against her paternal uncle has been dismissed by reversing the judgment and decree by the trial Court.

2. Learned counsel for the petitioner submits that appeal of respondents is time barred but no finding in this regard is available in the impugned judgment.

On merits, he apprised that the suit was originally against grandfather and after his death, the paternal uncle was substituted as defendant. The claim of maintenance allowance is based on Section 337 of Muhammadan Law and the petitioner claim herself to be a poor distant relative, who would get inheritance from the property of paternal uncle, received by him as a consequence of death of his father and petitioner’s grandfather. Also submits that grandfather had inherited some property on death of petitioner’s father which has further been devolved to the respondent-uncle.

3. Operative part of the Appellate Court’s judgment deciding the legal question is reproduced hereunder:

“7. The observation of learned Trial Court qua fixation of liability on the Appellants/Defendant Nos. 3 & 4 being fallen under prohibited degree of other/poor relative was although without any support of statutory law or case law yet it seems that probably the provision of Section 373 of Muhammadan Law was in the mind of learned Trial Court which reads:

373. Maintenance of other relations

“Persons who are not themselves poor are bound to maintain their poor relation within the prohibited degrees in proportion to the share which they would inherit from them on their death. A father is not bound to maintain his son’s widow.”

8. Thus, as above the relatives having prohibited degree can be burdened to pay maintenance allowance to their poor relatives proportionately as per their share of inheritance of such poor relatives. Although it is not debatable at all that the appellants being real paternal uncles of the respondent/plaintiff do fall in her prohibited degree yet it is also indisputable that they will not get any share of inheritance of the estate of late father Shabbir Ramzan of the respondent/defendant for being survived through his parents, wife and children and therefore, his real brothers could not be considered his beneficiary legal heirs and they will also not get any share of estate (God forbid) of the respondent or her mother, in the attending situation. Therefore, the Court is of humble but firm view that no benefit of said provisions of Section 373 of Muhammadan Law can be extended in favour of the respondent/plaintiff against the Appellants/Defendants Nos.3&4.

9. Besides above, the Appellants/Defendants Nos.3&4 could be burdened to pay maintenance allowance to the respondent/plaintiff, had she had no resources or only being poor and unable to meet both ends together to carry on her mundane life. However, learned Trial Court itself noted at lower part of its finding in earlier quoted Paragraph No. 6, at the cost of repetition again, as under:

“It is ineluctable to highlight there that minor/plaintiff is getting education and her monthly paid fees slips are available on record in this regard. It clearly unveils that minor/Plaintiff mother is also in good stable condition who is rendering quality of education to her daughter.”

[Emphasis supplied]

4. Learned counsel for the petitioner is asked whether Section 373 of Muhammadan Law is a statutory provision, the answer is in negative. He is also asked to produce any judgment where decree of maintenance against the distant relative is issued on the basis of Section 373, he could not produce.

Federal Shariat Court in its judgment Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and four others (PLD 2021 FSC 1) has opined on the issue in following words:

“There is a plethora of judgments of the superior Courts of Pakistan, where they have differed from the so-called text books of Muhammadan Law including Mulla’s book. This trend was initiated soon after independence of Pakistan. Although, in a very limited way and sporadically, this trend was there even in pre-partition era of British India. After the independence of Pakistan, this trend became a norm by the superior Courts of Pakistan to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. For example; It was stated in a judgment very clearly while deciding a matter of Hisanat, which is an issue of Muslim Personal Law as:

“It would be permissible for the Courts to dif fer from the rules of Hisanat as quoted or stated in the text books like book of Mulla”. [Reference PLD 1965 W.P. Lahore 695]. This trend kept on evolving, and is still evolving. This process is primarily based on following factors:

(i) the superior Courts are clearly of the view that the opinion contained in text book of so - called Muhammadan Law, are neither final nor binding upon the superior Courts of Pakistan. While discussing paragraphs 352 and 354 of Mulla’s book the Supreme Court held:

“It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.” (2014 SCMR 343 para 13)

(ii) It is clearly mentioned in number of judgments that the book of D.F. Mulla is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. While dilating upon paragraph 113 of the Mulla’s book it was held:

___________

“Mulla’s “Principles of Muhammadan Law” is a reference or a text book as some times referred in our judgments like other books of this category and not a statutory book. Usually, when the Courts consult it, this exercise is just like consulting a b ook where the opinions of the great Muslim jurists are easy to get because opinions are mentioned in English language in an over simplified language and paragraphs of the book are numerically marked. The very style of composition of this book often create a confusion amongst the reader that it is a statute book which it is not. Perhaps this is the reason why the petitioner states in his petition that the book of D.F. Mulla comes within the purview of custom and usage which is absolutely wrong and incorrect.”

[Emphasis supplied]

D.F Mulla’s Muhammadan Law is just a text book, which can be referred or relied upon by Courts like any other text book. Being neither a statute nor a custom or usage, the opinion in it is not binding.

5. Without prejudice to the legal position, ibid, in this Court’s opinion, the findings given by the Appellate Court are factual and based on the Section 373 holding that conditions of this Section of the text book are not met. The petitioner could not establish before the Appellate Court that she would get inheritance from the estate of her respondent-paternal uncle on his death.

The Appellate Court also determined that the petitioner could not prove herself to be poor distant relative. The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence.

6. In this Court’s opinion, if suit was filed to claim maintenance from grandfather after death of father, the paternal uncle could not have been replaced as defendant in the shoes of grandfather.

No case for interference is made out, therefore, the petition is dismissed.

(Y.A.) Petition dismissed