Section 17 Guardians and Wards Act (VIII of 1890) ==== Restriction on movement of ward/ minor-- Direction by Trial Court not to remove ..............

 2018 PLD 377 Sindh High Court

--Section 17 Guardians and Wards Act (VIII of 1890) ==== Restriction on movement of ward/ minor-- Direction by Trial Court not to remove the minor from the jurisdiction of the Court-- Welfare of minor -- While dismissing the application of father for permanent custody the Trial Court directed both the parties not to remove the ward from the jurisdiction of the Court and to deposit the passport of minor-- Appellate Court upheld the order of Trial Court on the basis that if the minor was removed from the jurisdiction of the Trial Court, the father would be deprived of visitation rights and would be seriously prejudiced; held, that visiting rights of father was only a part that played a role in the welfare and well-being of the child but it did not form the entire ingredient or composition in the upbringing and grooming of a child---Minor belonged to a family which could afford a better upbringing, education and environment either in Pakistan or anywhere in the world---Courts below should not have seen welfare of the minor only from the angle that the father would miss his opportunity to see his child but it also had to be seen whether a ward who was capable of studying abroad, in case opportunities were available to him, should be deprived on account of the fact that father must not miss his visiting opportunities---Every child has its own peculiar circumstances and his welfare demands may vary---Restriction on movement, in the present case, appeared to be a tool to settle score with the mother but it would not serve the welfare of the minor---High Court set-aside the restriction on movement of the ward and directed that the passport should be returned to the ward; that the ward was at liberty to travel and to be admitted in any best available educational institution, be it in Pakistan or foreign country as desired by the mother, however the selection of the institution shall be subject to approval and permission of the father; that the father shall not be unreasonable in issuing no objection to the admission of the ward to any school, college or university; that any movement of the ward away from the foreign country where the mother desired to take the child for educational benefit or change of school and college etc, within or outside the foreign country, shall be subject to permission of father, however he shall not be unreasonable in considering such request of change of institute and should not withhold such permission in case it was meant for the welfare of the ward; that the father was at liberty to visit the ward at least once in 15 days and/or as many days as agreed between the parents; that insofar as the winter or summer vacations were concerned, father had a right to be with his son and father may travel to him, if he so desired to spend vacation for any period, which may not exceed 30 days during summer vacation and 15 days during winter vacations, or the parties may set a schedule annually on such terms and conditions as they deemed fit and proper-- Constitutional petition disposed.

S. 17-A---Suit for recovery of maintenance allowance filed by daughter who had attained majority---Daughter living separately from father in circumstances where .........

 S. 17-A---Suit for recovery of maintenance allowance filed by daughter who had attained majority---Daughter living separately from father in circumstances where father had already made financial arrangements for daughter---Effect---Daughter, who was aged 35 years and allegedly remained unmarried, filed a Suit against her separated parents for recovery of maintenance allowance---Family Court fixed the interim maintenance @ Rs.18,000/- with the direction to the father to pay the maintenance to the daughter---On failure to pay the interim maintenance, the Family Court decreed the Suit by invoking the provisions contained in S.17-A of the Family Courts Act, 1964 and directed the father to pay Rs.20,000/- per month with 20% annual increase from the date of institution of the Suit till marriage of the daughter---Father contended that he could be held responsible for payment of maintenance to the daughter only when she showed obedience to him; that his daughter was a major and she was avoiding living with him---Validity---Daughter was a major having age of 35 years and she had instituted the Suit against both her parents---Daughter lived separate from her father since separation of matrimonial tie of her parents---Admittedly, soon after separation, the father had arranged a source of maintenance for the daughter in the shape of house handed over to the mother, who initially maintained her through the income of rent---Said fact clearly showed that the father was well aware of his responsibilities to maintain her daughter and for that very purpose he had made sufficient arrangements---Strangely, the Family Court had only burdened the father with the liability of maintenance even though the daughter had claimed maintenance from both her parents---Decree for maintenance passed by Family Court was set-aside in circumstances---High Court directed that Suit filed by daughter for recovery of maintenance allowance shall be deemed to be pending befor e the Family Court, which shall decide the same afresh strictly in accordance with law---Constitutional petition was allowed accordingly.

PLD 2019 LAHORE 102

ﺑﻐﯿﺮ ﺍﺟﺎﺯﺕ ﺩﻭﺳﺮﯼ ﺷﺎﺩﯼ ﮐﺮﻧﮯ ﮐﮯﻗﻮﺍﻧﯿﻦ ﺍﻭﺭ‎ ‎ﺳﺰﺍﺋﯿﮟ:

 Polygamy and Punishment on second marriage.

ﺩﻓﻌﮧ 6 ﻣﺴﻠﻢ ﻓﯿﻤﻠﯽ ﻻﺯ ﺁﺭﮈﯾﻨﻨﺲ 1961 ﮐﮯ ﺗﺤﺖ‎ ‎ﺍﮔﺮ ﮐﻮﺋﯽ ﺷﺨﺺ ﺩﻭﺳﺮﯼ ﺷﺎﺩﯼ ﮐﺮﻧﺎ ﭼﺎﮨﺘﺎ ﮨﮯ ﺗﻮ ﻭﮦ
ﺍﺱ ﮐﮯ ﻟﯿﮯ ﯾﻮﻧﯿﻦ ﮐﻮﻧﺴﻞ ﻣﯿﮟ ﺩﺭﺧﻮﺍﺳﺖ ﺩﯾﮕﺎ ﺍﻭﺭ
ﺍﺟﺎﺯﺕ ﺣﺎﺻﻞ ﮐﺮﯾﮕﺎ ۔ﺍﮔﺮ ﻭﮦ ﺍﺟﺎﺯﺕ ﮐﮯ ﺑﻐﯿﺮ ﺩﻭﺳﺮﯼ
ﺷﺎﺩﯼ ﮐﺮﺗﺎ ﮨﮯ ﺗﻮ ﺍﯾﮏ ﺳﺎﻝ ﺳﺰﺍ ﺍﻭﺭ 5 ﻻﮐﮫ ﺟﺮﻣﺎﻧﮧ
ﮨﻮﮔﺎ
ﻟﮩﺬﺍ ﭘﺎﮐﺴﺘﺎﻧﯽ ﻗﺎﻧﻮﻥ ﮐﮯ ﻣﻄﺎﺑﻖ ﯾﮧ ﻗﺎﺑﻞ ﺳﺰﺍ ﺟﺮﻡ
ﮨﮯ ۔ﺟﺒﮑﮧ ﻓﯿﮉﺭﻝ ﺷﺮﯾﺖ ﮐﻮﺭﭦ ﺳﺎﻝ 2000 ﻣﯿﮟ ﺍﺱ
ﻗﺎﻧﻮﻥ ﮐﻮ ﺷﺮﯾﺖ ﮐﮯ ﻣﻄﺎﺑﻖ ﻗﺮﺍﺭ ﺩﮮ ﭼﮑﯽ ﮨﮯ
PLD 2000 FSC page 1
ﺍﺳﯽ ﻃﺮﺡ ﺣﺎﻝ ﮨﯽ ﻣﯿﮟ ﺳﭙﺮﯾﻢ ﮐﻮﺭﭦ ﭘﺎﮐﺴﺘﺎﻥ ﻧﮯ
ﻣﺬﮐﻮﺭﮦ ﻗﺎﻧﻮﻥ ﮐﻮ ﺷﺮﯾﺖ ﮐﮯ ﻣﻄﺎﺑﻖ ﻗﺮﺍﺭ ﺩﯾﺘﮯ ﮨﻮﺋﮯ
ﺷﻮﮨﺮ ﮐﯽ ﺳﺰﺍ ﺑﺮﻗﺮﺍﺭ ﺭﮐﮭﯽ
PLD 2017 SC page 187
ﺟﺒﮑﮧ ﻗﺎﻧﻮﻥ ﺩﺍﺩ ﺭﺳﯽ ﺧﺎﺹ ﮐﯽ ﺩﻓﻊ 55 ﮐﮯ ﺗﺤﺖ
ﻣﺪ ﻋﯽ ﮐﺎ ﺍﯾﺴﺎ ﻗﺎﻧﻮﻧﯽ ﺣﻖ ﺟﺲ ﮐﺎ ﻣﺪ ﻋﺎ ﻋﻠﯿﮧ ﺍﻧﮑﺎﺭ
ﮐﺮﺗﺎ ﮨﻮ ﺗﻮ ﻋﺪﺍﻟﺖ ﺍﺱ ﮐﻮ ﻏﯿﺮ ﻗﺎﻧﻮﻧﯽ ﮐﺎﻡ ﮐﺮﻧﮯ ﺳﮯ
ﺭﻭﮎ ﺳﮑﺘﯽ ﮨﮯ
ﺟﺒﮑﮧ ﺍﯾﮏ ﺷﻮﮨﺮ ﮐﮯ ﺑﯿﻮﯼ ﮐﮯ ﺧﻼﻑ ﻣﻘﺪﻣﮧ ﻣﯿﮟ
ﻓﯿﻤﻠﯽ ﻋﺪﺍﻟﺖ ﻧﮯ ﺑﯿﻮﯼ ﮐﻮ ﺩﻭﺳﺮﯼ ﺷﺎﺩﯼ ﮐﺮﻧﮯ ﺳﮯ
ﺭﻭﮎ ﺩﯾﺎ ﺗﮭﺎ ﺍﻭﺭ ﻗﺮﺍﺭ ﺩﯾﺎ ﺗﮭﺎ ﮐﮯ ﻓﯿﻤﻠﯽ ﮐﻮﺭﭦ
ﺩﻭﺳﺮﯼ ﺷﺎﺩﯼ ﺭﻭﮐﻨﮯ ﮐﺎ ﺣﮑﻢ ﺍﻣﺘﻨﺎﻋﯽ ﺟﺎﺭﯼ
ﮐﺮﺳﮑﺘﯽ ﮨﮯ
1983 CLC page 279
ﺟﺒﮑﮧ ﺍﻋﻠﯽ ﻋﺪﺍﻟﺘﯽ ﻧﻈﺎ ﺋﺮ ﻣﯿﮟ ﻗﺮﺍﺭ ﺩﯾﺎ ﮔﯿﺎ ﮨﮯ ﮐﮧ
ﻓﯿﻤﻠﯽ ﮐﻮﺭﭦ ﺍﻧﺼﺎﻑ ﭘﺮ ﻣﺒﻨﯽ ﮐﻮﺋﯽ ﺑﮭﯽ ﺣﮑﻢ ﺻﺎﺩﺭ
ﮐﺮ ﺳﮑﺘﯽ ﮨﮯ ۔ ﻣﺰﯾﺪ ﻧﮑﺎﺡ ﻧﺎﻣﮧ ﮐﮯ ﺧﺎﻧﮧ ﻣﯿﮟ ﺗﺤﺮﯾﺮ
ﮨﻮﺗﯽ ﮨﮯ ﮐﮯ ﮐﯿﺎ ﺩﻭﻟﮩﺎ ﭘﮩﻠﮯ ﺳﮯ ﺷﺎﺩﯼ ﺷﺪﮦ ﮨﮯ ؟
ﺍﮔﺮ ﺍﺟﺎﺯﺕ ﮐﺎ ﺳﺮﭨﯿﻔﮑﯿﭧ ﻧﺎ ﺩﯾﺎ ﺟﺎﺋﮯ ﺗﻮ ﻧﮑﺎﺡ ﺭﺟﺴﭩﺮﺍﺭ
ﻧﮑﺎﺡ ﻧﮩﯿﮟ ﭘﮍﮬﺎ ﺳﮑﺘﺎ ﺍﻭﺭ ﻧﺎ ﮨﯽ ﺍﯾﺴﺎ ﻧﮑﺎﺡ ﺭﺟﺴﭩﺮﮈ
ﮨﻮﺳﮑﺘﺎ ﮨﮯ ۔ ﻟﮩﺬﺍ ﺑﯿﻮﯼ ﻧﺎ ﺻﺮﻑ ﺷﻮﮨﺮ ﮐﮯ ﺧﻼﻑ ﮐﯿﺲ
ﮐﺮﺳﮑﺘﯽ ﮨﮯ ﺑﻠﮑﮯ ﻣﺘﻌﻠﻘﮧ ﯾﻮﻧﯿﻦ ﮐﻮﻧﺴﻞ ﮐﮯ ﺧﻼﻑ
ﺑﮭﯽ ﮐﯿﺲ ﮐﺮﺳﮑﺘﯽ ﮨﮯ ﮐﮧ ﻭﻭ ﺩﻭﺳﺮﺍ ﻧﮑﺎﺡ ﺭﺟﺴﭩﺮﮈ
ﻧﮧ ﮐﺮﯾﮟ
ﺍﯾﮏ ﺑﺎﺕ ﯾﺎﺩﺭﮐﮭﯿﮯ ﮐﮧ ﺍﺟﺎﺯﺕ ﮐﮯ ﺑﻐﯿﺮ ﺩﻭﺳﺮﯼ ﺷﺎﺩﯼ
ﮐﺮﻧﺎ ﭘﺎﮐﺴﺘﺎﻧﯽ ﻗﺎﻧﻮﻥ ﮐﮯ ﺗﺤﺖ ﺷﺮﻋﯽ ﮨﮯ ﺍﻭﺭ ﻏﯿﺮ
ﺷﺮﻋﯽ ﻧﮩﯿﮟ , ﺍﮔﺮ ﺷﻮﮨﺮ ﺍﯾﺴﺎ ﮐﺮﺗﺎ ﮨﮯ ﺗﻮ ﻋﺪﺍﻟﺖ ﺷﻮﮨﺮ
ﮐﺎ ﺩﻭﺳﺮﺍ ﻧﮑﺎﺡ ﮐﺎﻟﻌﺪﻡ ﻧﮩﯿﮟ ﮐﺮﺳﮑﺘﯽ ﺻﺮﻑ ﺷﻮﮨﺮ
ﮐﻮ ﺍﺟﺎﺯﺕ ﻧﮧ ﻟﯿﻨﮯ ﮐﯽ ﺳﺰﺍ ﺩﮮ ﺳﮑﺘﯽ ﮨﮯ

لاہور ہائیکورٹ نے دوسری شادی کے بعد بیوہ کو سرکاری نوکری سے برطرف کرنے کا نوٹیفکیشن کالعدم قرار دیدیا۔

لاہور ہائیکورٹ نے خاتون زویا اسلام کی اپیل پر تحری فیصلہ جاری کردیا جو جسٹس چودھری اقبال کی سربراہی میں2 رکنی بینچ نے تحریر کیا۔
اپیل کنندہ مؤقف کیا تھا کہ سرکاری ملازم شوہرکی وفات کے بعد نائب قاصدکی نوکری 2020 میں ملی، شوہر اسلام کی بیوہ ہونےکی وجہ سے سرکاری نوکری ملی اور 2021 میں دوسری شادی کی جس کی بنیادپرنوکری سے برطرف کیاگیا۔
عدالتی فیصلے کے مطابق ملازم شوہرکی بیوہ کو ملنے والی نوکری دوسری شادی پرختم نہیں ہوسکتی، شوہرکی وفات کے بعد بیوہ کو دوسری شادی پر سرکاری نوکری سے برطرف نہیں کیاجائےگا کیونکہ بیوہ شادی کرسکتی ہے، ہمارے مذہب میں یہ ایک عورت کا بنیادی حق ہے۔
عدالتی فیصلے میں مزید کہا گیا ہے کہ بیوہ کو دوسری شادی کی بنیاد پرنوکری سے نکالنا شرعی کے قوانین کی خلاف ورزی ہے، جس قانون کی بنیاد پربیوہ کو نوکری سے نکالاگیا اس پر سپریم کورٹ کا فیصلہ آچکا ہے، عدالت سنگل بینچ کا فیصلہ اوربیوہ کو نوکری سے نکالنے کا نوٹیفکیشن کالعدم قراردیتی ہے، عدالت بیوہ زویا اسلام کی اپیل کو منظور کرتی ہے۔
A widow who was inducted on contract employment due to death of her husband during service, was terminated from service due to contracting second marriage---- held that marriage or re-marriage is a religious and fundamental right of a woman and any step /action taken in contravention of such right would be illegal, unlawful and ultra vires. A civil servant passed away during his service upon which his widow was appointed as Naib Qasid. But on her re-marriage, her services were terminated under Memorandum dated 15.12.2015 issued by the Establishment Division whereby on remarriage of a widow the contract of employment provided to her would be terminated from the date of her remarriage. The said Memorandum dated 15.12.2015 had already been set aside by the Hon'ble Supreme Court of Pakistan. Thus no immunity/ protection is attached to such illegal order of an authority. Intra Court Appeal allowed.

ICA 77894/22
Zoya Islam Vs Government of Pakistan etc
Mr. Justice Ch. Muhammad Iqbal
11-09-2024
2024 LHC 3944











ای میل یا ایس ایم ایس کو سابقہ بیان کے طور پر دوران جرح گواہ کو تقابل کرایا جا سکتا ہے۔

 2020 CLC 1029 KARACHI-HIGH-COURT
TAIMOOR MIRZA VS MALIHA HUSSAIN

Guardians and Wards Act 1890--25 , Qanun-e-Shahadat Order 1984--PREAMBLE , Requirements--Term , The Family Courts Act 1964--17 ,
S.25---Family Courts Act (XXXV of 1964), S. 17---Qanun-e-Shahadat (10 of 1984), Preamble---Petition for custody of a minor---Additional evidence, production of---Requirements---E-mail or other digital Communications---Evidentiary value---Scope---Confronting witness with his earlier statement---Scope---Application for production and confrontation of e-mail to the witness was dismissed on the ground that same was not annexed or mentioned in the pleadings---Validity---Provisions of Qanun-e-Shahadat, 1984 were not applicable to the proceedings before Family Court but basic principle for recording evidence should be considered---Family Court could adopt any procedure which was not expressly barred or prohibited by law---Cross-examination was a litmus test of the truthfulness of the statement made by a witness on oath in examination-in-chief---Party conducting cross-examination could ask leading questions and confront the witness with previous statements whether same pertained to some other proceedings or event, subject to relevancy with the issue---E-mail or other digital communication of a witness might be treated as previous statement and confronted during cross-examination---Defendant in a family suit had to disclose all the documents relied by him---E-mail was a form of documentary evidence and same could be admitted as evidence---Measures were to be taken to protect the integrity and authenticity of email by digital signature and encryption---Reliability of email or other electronically generated documents might be subject to attack but a party could not be restrained to present it in the Court as a documentary evidence---If e-mails or other digital documents were generated or originated by a witness then same could be confronted to him during his cross-examination---Impugned orders passed by the Courts below were set aside, in circumstances---Petitioner might confront the respondent in the witness box during cross-examination with all the digitally created and communicated documents by her through email or social media, subject to relevancy of the same---Constitutional petition was allowed, in circumstances.

Under section 5 of the West Pakistan Family Courts Act, 1964, read with its' Schedule, the family suits have been categorized as suits for

(P L D 2011 Lahore 569)

(i) dissolution of marriage,
(ii) recovery of dower,
(iii) recovery of maintenance,
(iv) restitution of conjugal rights,
(v) custody of children
(vi) guardianship,
(vii) jactitation of marriage and
(viii) recovery of personal property and belongings of a wife.
Under Rule 6 of the West Pakistan Family Court Rules, 1965, any of the aforesaid family suits can be filed in a court within whose local limits the cause of action wholly and in part has arisen or the parties reside or have last resided together.
In the case of suits for dissolution of marriage and recovery of dower, the proviso to Rule 6 gives additional choice to a wife to file such suits within the local limits of the court where she ordinarily resides.
Obviously, the proviso to Rule 6 does not apply to suits other than those for the dissolution of marriage or for the recovery of dower.
There is no prohibition against the joinder of causes of action under the West Pakistan Family Courts Act, 1964. Resultantly, a wife can file an omni bus suit wherein she can combine her causes of action of dissolution of marriage, maintenance, recovery of dower, dowry and personal property and custody or guardianship of children. Likewise, a husband can, in the same suit, seek restitution of conjugal rights or jactitation of marriage along with custody and guardianship of the children.
In such an event, a Family Court cannot divide the plaint into causes of action that fall within its territorial jurisdiction and those which fall beyond it nor can the Family Court split the plaint to separate and return a part of the plaint for lack of territorial jurisdiction.
In case of lack of jurisdiction, a plaint can only be returned as whole. It is also so provided under Rule 5 of the West Pakistan Family Court Rules, 1965, which does not envisage any piecemeal or partial return of the plaint. Rafiq Ahmad Khan Lound Advocate High Court LLM DGKHAN and Multan

-Ss.17-A & 17-B---Interim maintenance allowance---Non-payment---Penal consequences---Decreeing the suit forthwith---Discretion of the Court---

 2021 C L C 1300

Family Courts Act (XXXV of 1964)---
.....................
----Ss.17-A & 17-B---Interim maintenance allowance---Non-payment---Penal consequences---Decreeing the suit forthwith---Discretion of the Court---Scope---If defendant defaulted, in making payment of interim maintenance, despite orders by the Family Court, penal action in terms of S.17-A of the Family Courts Act, 1964 ('the Act 1964') provided two separate penal consequences; first striking off the right of defence and second to decree the suit---Sections 17-A & 17-B of the Act 1964, provided that by having used the word " may " the Legislature did not intend to make passing of decree mandatory, rather it had been left upon the discretion of the Trial Court to consider the facts and circumstances of each case---Section 17-B of the Family Courts Act, 1964 further explained the circumference as well as the mode of exercising the authority in shape of making reasonable inquiry of the matter-in-question before decreeing the suit due to default i.e. the Court may issue a Commission to examine any person; make a local investigation; and inspect any property or document.
Family Courts Act (XXXV of 1964)---
......................
----S.5, Sched. & S. 17-A ---Civil Procedure Code ( V of 1908), O.VI, R.17---Interim maintenance allowance for wife and minors---Quantum and entitlement---Scope---Plaintiff-lady filed suit for maintenance allowance for minors and herself---Defendant moved application for amendment in the pleadings contending that the fact that he had divorced the mother of the minors could not be mentioned in the written-statement submitted on his behalf by his special attorney in connivance with plaintiff---Family Court fixed amount of interim monthly maintenance allowance of both the minors @ Rs.15,000/- each and Rs. 20,000/- for the mother of the minors---Family Court after failure of the defendant to deposit the interim maintenance allowance on three dates of hearing, struck off his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Appellate Court maintained the order of the Family Court---Both the father and mother invoked constitutional jurisdiction of the High Court to assail quantum/entitlement of the maintenance allowance---Held, that record verified the fact that there had been a default on the part of the defendant in payment of interim maintenance---Although it could not be said that the Family Court wrongly invoked the provisions of S.17-A of the Act, however, material fact regarding divorce should not have been ignored---Copy of the Divorce Deed was not only on the record but the same was also acknowledged from the fact that the plaintiff had filed a suit challenging the validity of the said Divorce Deed---Since the fate of the claim of the plaintiff for recovery of her maintenance allowance hinged upon the factum of her being in Nikah of the defendant or not, therefore, the application for amendment in the statement ought to have been decided before passing a decree---In consequence of peculiar circumstances of the present case as well as the amount of maintenance allowance demanded by the minors/ their mother, it was incumbent upon the Trial Court to have sought evidence of the parties in proof of justification concerning the quantum of maintenance---High Court set aside the decrees and judgments passed by both the Courts below and remanded the matter to the Family Court to decide the quantum of maintenance after taking evidence of the petitioner/defendant vis-a-vis his financial status---High Court directed that the Family Court shall also decide the application moved by the defendant for seeking amendment in his written-statement before passing any order regarding maintenance for the mother of the minors owing to the plea of divorce raised by the defendant ; that the Family Court shall also fix interim maintenance allowance after hearing both the parties and considering financial competency of the father who shall regularly pay the same---Constitutional petition of the mother of the minors was disposed of---Constitutional petition of the father was allowed, in circumstances.
Family Courts Act (XXXV of 1964)---
...... ........
----S.5 ,Sched. & S.17-A ---Suit for maintenance allowance for minors and wife---Interim maintenance allowance fixed by the Court---Non-payment of---Suit was decreed as penal consequence---'Decree'---Scope---Family Court ordered the defendant to deposit interim maintenance allowance of minors as well as that of wife/plaintiff fixed by the Court and after his failure to deposit the same on three dates of hearing struck of his right of defence and decreed the suit under S.17-A of the Family Courts Act, 1964---Held, Penal consequence to decree the suit provided under S.17-A of the Family Courts Act, 1964 embraced the expression of "decree" which though had not been defined in the Act, yet the decree invariably referred to judicial determination of a matter in controversy and such determination could not be done without application of mind in accordance with evidence and law on the subject---Impugned judgment , therefore, mechanically and technically upholding prayer of a suit could not be termed a decree---High Court set aside the impugned decrees and judgments passed by both the Courts below and remanded the matter to be decided afresh---Constitutional petition of the father was allowed, in circumstances.
Family Courts Act (XXXV of 1964)---
...................
----S.5, Sched. & Ss.17-A & 12-A---Maintenance allowance, grant of---Interim maintenance allowance, fixation of ---Family Court, powers of---Family Court, for grant of maintenance allowance, was to see that maintenance allowance, was indispensible right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings---Although S.17-A of the Family Courts Act, 1964 empowered the Family Court to pass order for grant of interim maintenance at any stage of the proceedings, in the normality of circumstances, the same must be passed after hearing both the parties, unless the attitude and conduct of the defendant/father was evasive---Order for grant of interim maintenance was to be made on the basis of tentative assessment of material available on file and keeping in view the social status of the parties---Both material available and social status was to be mentioned in the order for grant of interim maintenance---Quantum of interim maintenance was to be "bare minimum" to meet the day to day needs of the recipients in the narrow context---Although the Family Laws had been enacted to promote , protect and advance the rights of woman and children yet at the interim stage the version of the defendant be given a sympathetic or some-what preferable consideration because non-payment of interim maintenance allowance would cut throat of his valuable rights i.e. right to defence and inconsequential effects, children/women would be the loosers and deprived parties---High Court observed that if the case was not decided within the statutory period as given in S.12-A of the Act either party might apply to the High Court for appropriate direction, however, order for grant of interim maintenance shall hold the field unless reviewed by the High Court under S.12-A of the Act or Family Court itself reviewed the same at any stage. Rafiq Ahmad Khan Lound Advocate High Court

فیملی اجرا میں ضامن کی ذمہ داری

PLJ 2024 Lahore 683

A surety’s liability is co-extensive with that of the judgment debtor and he was as much bound by his undertaking as was the judgment debtor, and both were collectively and severely liable to make payment to the decree holder. While construing the tenure and extent of surety bond, the words and recitals of the surety bond must be taken into consideration to gather the intention of the executant of said bond and the bond must be strictly construed. A surety is liable only upto the extent to which he is clearly bound.
Through the order dated 28.11.2015 the learned executing Court directed respondent No.5 to submit surety bond of Rs.400,000/- with one local surety in the like amount and in compliance of said order, the petitioner submitted surety bond of Rs.400,000/- on 03.12.2015 and vide order dated 29.01.2016 the learned executing Court on submission of surety bond of Rs.400,000/- released respondent No.5 which facts clearly established that the petitioner was stood surety only of Rs.400,000/-. Contract of surety had provided that maximum he was liable to the tune of Rs.400,000/-. Orders of learned executing Court did not find mentioned that the respondent No.5 would arrange a surety for the payment of the entire decretal amount. Petitioner stood surety amounting to Rs.400,000/- only, which he has paid before the learned Executing Court on different occasions as detailed in his application to discharge him from the liability as surety. Said fact was not denied by respondents No.2 to 4. In these circumstances, the petitioner has satisfied the amount for which he stood surety.

PLJ 2024 Lahore 683
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
MASOOD-UL-HASSAN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
W.P. No. 5215 of 2022, decided on 2.7.2024.

Family Courts Act, 1964 (XXXV of 1964)--
----S. 14--Suit for recovery of maintenance allowance and dowry articles was decreed--Execution of decree--Arrest of Respondents No. 5, 6--Application for setting aside ex-parte decree--Statement of counsel for respondents--Operation of judgment and decree was suspended--Releasing of--Submission of surety bond--Dismissal of application--Writ petition--Dismissed--Petitioner’s property was put to auction--Liability as surety--Challenge to-- Respondent No. 6 was sent to civil prison for a period of one year and after facing civil imprisonment he was released from jail-- Respondent No. 5 was also arrested twice for satisfaction of decree--Both judgment debtors were discharged by Court from paying decretal amount--The petitioner was only surety and he submitted surety bond in light of statement of counsel for decree holders and direction of executing Court--After dismissal of Respondent No. 5’s application for setting aside ex-parte judgment and decree he was again arrested and sent to jail--He moved an application for his release from jail and discharge him from payment of decretal amount--The Executing Court while deciding his application for his release from payment of decree--The petitioner bind himself to pay decretal amount being ‘surety’ and not given any fresh surety bond for satisfaction of whole decree--Orders of executing Court did not find mentioned that Respondent No. 5 would arrange a surety for payment of entire decretal amount--Petitioner stood surety amounting only, which he has paid before Executing Court on different occasions--Said fact was not denied by Respondents No. 2 to 4--Petitioner has satisfied amount for which he stood surety--Appeal accepted. [Pp. 686, 687, 688,690, 691] A, B, C, D & E
M/s. Muhammad Afzal Chaudhary & Muhammad Akhtar Chaudhry, Advocates for Petitioner.
Mr. Ejaz Hussain Mughal, Advocate for Respondent No. 2-4.
Date of hearing: 2.7.2024.

Judgment

Through this Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner assailed the vires of order dated 05.03.2022 whereby the learned Appellate Court while accepting the appeal of Respondents No. 2 to 4, set-aside the order dated 28.09.2021 and directed the learned Executing Court to proceed further in accordance with law to satisfy the decree.
2. Shorn of unnecessary details, Respondents No. 2 to 4 instituted a suit for recovery of maintenance allowance and dowry articles against the Respondents No. 5 & 6 on 20.11.2014; that suit was resisted by Respondents No. 5 & 6 through filing contesting written statement; that after failure of pre-trial reconciliation proceedings interim maintenance was fixed; that Respondents No. 5 & 6 failed to pay the interim maintenance allowance as well as cross-examine the plaintiffs’ witnesses, hence, ex-parte proceedings were conducted vide order dated 25.04.2015 and learned Trial Court after recording ex-parte evidence decreed the suit vide judgment & decree dated 29.06.2015 and declared that Respondent No. 2/Plaintiff No. 1 is entitled to recover maintenance allowance @ Rs. 2,000/-per month from institution of the suit till subsistence of marriage, the Respondents No. 3 & 4 were declared entitled to recover maintenance allowance @ Rs. 2,000/-per month from the institution of suit till their legal entitlement and also decreed alternate price of dowry articles as Rs. 2,00,000/-; that Respondents No. 2 to 4 filed an execution petition for the satisfaction of the said decree on 24.07.2015; that Respondents No. 5 & 6 failed to appear before the Court despite issuance of notices, therefore, non-bailable warrants of arrest were issued against them and in the light of said warrants Respondent No. 5 was arrested and produced before the Court on 03.11.2015; that said judgment debtor (Respondent No. 5) moved an application for setting aside the ex-parte judgment and decree coupled with an application for suspension of said decree on 18.11.2015; that learned counsel for the decree-holders made a no objection statement qua suspension of ex-parte judgment and decree and release of judgment-debtor subject to furnishing surety bond in the sum of Rs. 400,000/-with one local surety; that the learned executing Court subject to submission of surety bond in the sum of
Rs. 400,000/-with one local surety in the like amount to the satisfaction of the Court suspended the judgment and decree dated 29.06.2015 and released the judgment-debtor vide order dated 28.11.2015; that petitioner stood surety of said Respondent No. 5 to the tune of Rs. 4,00,000/-and in this regard he submitted surety bond on 03.12.2015; that Respondent No. 6 (husband of Respondent No. 2) was also arrested and sent to civil prison for one year on 12.11.2019; that as the decree was not satisfied, therefore, proceedings against the petitioner/surety were initiated and his property was attached vide order dated 26.07.2019; that petitioner applied for staying the auction proceedings and got recorded his statement on 07.10.2017 to the effect that if the judgment debtor failed to pay the decree then he being the surety would be responsible to satisfy the decree and in case of default he will have no objection upon the auction of his property; that he also submitted an affidavit on 11.11.2019 by maintaining that he has paid Rs. 50,000/-today and will deposit further amount of Rs. 50,000/-on 12.11.2019 and undertakes that he will be bound to pay the remaining decretal amount; that Respondent No. 5/judgment debtor moved an application for his release which was allowed by the learned Executing Court vide order dated 22.12.2020 with the observation that the father is bound to pay the maintenance allowance to his children and in case of his non-payment the grandfather is liable to pay the same if he has sufficient resources to pay the same but there is nothing on record to show that he has sufficient means to pay the decretal amount and keeping in view his old age he was released from the jail; that Respondents No. 2 to 4 assailed said order through preferring an appeal which was dismissed vide order dated 30.04.2021 by maintaining that as the surety (petitioner) got recorded his statement on 17.10.2017 that he will pay the decretal amount, therefore, for the satisfaction of remaining decretal amount of maintenance allowance the surety (petitioner) as well as his property is available; that the petitioner also moved an application on 17.11.2020 for his discharge being the surety of judgment debtor (Respondent No. 5) by maintaining that he has paid Rs. 4,00,000/-for which he stood surety, therefore, he be discharged being the surety of the judgment debtor (Respondent No. 5). Learned Executing Court vide order dated 28.09.2021 allowed his application by declaring that surety (petitioner) is not responsible to pay any other amount and discharged him from his liability. Feeling aggrieved, Respondents No. 2 to 4 assailed said order through preferring an appeal. The learned Appellate Court vide judgment/order dated 05.03.2022 allowed the appeal by declaring that in the light of petitioner’s statement dated 07.10.2017 and his affidavit dated 11.11.2019 he is responsible for remaining decretal amount and set aside the order dated 28.09.2021 with direction to the learned Trial Court to proceed further in accordance with law to satisfy the decree. Being dissatisfied, petitioner has filed this petition.
3. I have heard learned counsel for the parties at length and perused the record with their able assistance.
4. It is matter of record that the learned Trial Court decreed the suit of the Respondents No. 2 to 4 for recovery of maintenance allowance and dowry articles in the following terms:
“What has been discussed above, the Plaintiff No. 1 is entitled to receive maintenance allowance from the defendant @
Rs. 2000/-per month from the institution of suit till the subsistence of marriage. While, the plaintiffs No. 2 & 3 are also entitled to receive maintenance allowance @ Rs. 2000/-per month from the institution of suit till they are legally entitled. The Plaintiff No. 1 is entitled to recover Rs. 200,000/-as alternate price of dowry articles. Suit of the defendant for restitution of conjugal rights is dismissed.”
Although, the suit was instituted against husband of Respondent No. 2 and father of Respondents No. 3 & 4 namely Muhammad Nadeem (Respondent No. 6) and his father namely Muhammad Nizam (Respondent No. 5) but the decree is silent whether said suit was decreed against both of them and they are bound to pay the decretal amount jointly and severely or the said decree is only against Respondent No. 6.
5. It is evident from the record that Respondent No. 6 was sent to civil prison for a period of one year on 12.11.2019 and after facing the civil imprisonment he was released from the jail. It is also evident from the record that Respondent No. 5 was also arrested twice for satisfaction of the decree. First time he was released on submission of surety bond of the petitioner and secondly he was released by the Court keeping in view his old age by observing that he was not in easy circumstances to pay the decretal amount.
In view of above, both the judgment debtors were discharged by the Court from paying the decretal amount.
6. From perusal of order sheet it appears that in compliance of non-bailable warrants of arrest, Respondent No. 5 was arrested and produced before the Court on 03.11.2015; that he moved an application on 28.11.2015 for setting aside the ex-parte judgment and decree dated 29.06.2015 coupled with an application for suspension of said decree; that learned counsel for the Respondents No. 2 to 4 appeared before the Court and made a statement that he has no objection if the operation of impugned judgment and decree is suspended and judgment debtor Muhammad Nizam (Respondent No. 5) be released subject to submission of surety bond in the sum of Rs. 400,000/-with one local surety in the like amount to the satisfaction of the Court. The learned executing Court in the light of his statement vide order dated 28.11.2015 suspended the operation of the impugned judgment and decree and directed to release the judgment debtor Muhammad Nizam if he submits surety bonds of Rs. 400,000/-with one local surety in the like amount to the satisfaction of the Court. The petitioner came forward and stood as surety of said Respondent No. 5 and submitted his surety bond of Rs. 4,00,000/-on 03.12.2015 in the light of order dated 28.11.2015. Perusal of the surety bond submitted by the petitioner reflects that petitioner stood surety with the following undertaking:
یہ کہ بروئے حکم عدالت جناب والہ حکم و ڈگری مورخہ 15-04-25 جو کہ منسوخ ہو چکی ہے اور مدعا علیہ نمبر 2 نظام دین جو کہ بند جوڈیشل حوالات ہے جس کی ضمانت/رہائی کا حکم عدالت جناب والہ سے مورخہ 15-11-28 کو ہو چکا ہے۔ بروئے حکم عدالت جناب والہ ضمانت نامہ داخل کروایا جارہا ہے۔
منکہ مسمی مسعود الحسن ولد محمد ابراہیم ذات ارائیں ساکن چک نمبر 24/WBتحصیل و ضلع وہاڑی کا ہوں اور بروئے حکم عدالت جناب والہ مالیتی 04 لاکھ روپے کا ضمانت نامہ بطور ضامن پیش ہو کر لکھ کر دیتا ہوں اور اقرار کرتا ہوں کہ میں حکم عدالت جناب والہ کا پابند رہوں گا اور اپنے آپ کو بطور ضامن پیش کرتا ہوں۔ بصورت دیگر عدالت جو بھی کاروائی کرے اعتراض نہ ہو گا۔"
In the light of said surety bond, learned Executing Court on 29.01.2016 passed the order in following terms.
“As per record, the judgment debtor Nizam in application for setting aside decree has submitted his surety bond of Rs. 4,00,000/-and he has been released from custody. Now to come up for payment of decretal amount on 09.02.2016.”
In this way, it appears that the petitioner was only surety for Rs. 4,00,000/-and he submitted the surety bond in the light of statement of learned counsel for the decree holders and the direction of learned executing Court.
7. It is evident from the perusal of record that the application for setting aside of ex-parte judgment and decree dated 29.06.2015 of Respondent No. 5 was dismissed on 16.03.2016 and appeal against it also met the same fate and dismissed by the learned Appellate Court vide order dated 26.08.2016 and the writ petition (W.P. No. 18033 of 2016) against said orders was dismissed as withdrawn on 29.05.2017.
8. After dismissal of Respondent No. 5’s application for setting aside the ex-parte judgment and decree he was again arrested and sent to jail. He moved an application for his release from the jail and discharge him from the payment of decretal amount. The learned Executing Court while deciding his application for his release from the payment of the decree vide order dated 22.12.2020 observed as under:
“It further reflects from perusal of record that earlier judgment debtor Muhammad Nizam was arrested and one Masood-ul-Hassan stood surety for him and surety has paid Rs. 4,00,000/-(four lac) for satisfaction of the decree. In the given circumstances, I am of the view that decree to the extent of dowry articles has been satisfied and further decree was partially satisfied decreed to the extent of maintenance is also satisfied. There is nothing on record to show that petitioner/judgment debtor Muhammad Nizam has sufficient resources to pay the decretal amount to the decree holder. Petitioner is an old-aged person, hence, it would not be appropriate to keep him in the civil prison. Hence, application of the petitioner is hereby accepted. Judgment debtor Muhammad Nizam is hereby released.”
9. Said order was assailed by Respondents No. 2 to 4 and the learned Appellate Court dismissed their appeal vide judgment/order dated 30.04.2021 while observing as under:
“Perusal of the record depicts that earlier Respondent No. 2/judgment debtor /Muhammad Nazim was arrested during the proceedings of execution petition and was released on submission of surety for him namely Masood-ul-Hassan for the satisfaction of decree. It is admitted thing that Rs. 4,00,000/-has been paid for the partial satisfaction of decree. Now the question before the Court is that to what extent of the decretal amount Respondent No. 2/judgment debtor/Muhammad Nazim is responsible. In this regard, it is observed that appellant/ decree holder filed a suit for maintenance allowance and dowry articles against the Respondent No. 1 Muhammad Nadeem and his father/Respondent No. 2/Muhammad Nazim and said suit was decreed vide judgment & decree dated 29.06.2015 to the extent of maintenance allowance of plaintiffs and dowry articles amounting to Rs. 200,000/-. It is observed that the judgment and decree is not clear that it was also passed against the Respondent No. 2/Muhammad Nazim regarding maintenance allowance of plaintiffs while to the extent of decretal amount of dowry articles i.e. Rs. 200,000/-has been paid. The Respondent No. 2/judgment debtor/Muhammad Nazim being grandfather of minor plaintiffs in the presence of father of minor plaintiffs Respondent No. 1, is not responsible to pay maintenance allowance of minors because it is primary responsibility of Respondent No. 1/judgment debtor being father to pay the maintenance allowance to his children and in case of non-payment of maintenance allowance, grandfather is duty bound to pay the maintenance allowance, if he has sufficient reasons to pay the same. But in this case, there is nothing on record to show that Respondent No. 2 has the easy circumstances to pay the maintenance allowance to his grandchildren.”
Said judgment was not assailed any further, hence, the same has attained finality. Through said orders, the learned Courts below discharged Respondent No. 5 for the satisfaction of the decree.
10. The petitioner failed to pay Rs. 4,00,000/-of his surety, hence, his property was put to auction. In order to stop the auction proceedings, petitioner appeared before the Court and got recorded his statement on 07.10.2017 in the following manner:
بیان کیا کہ میں مقدمہ ہذا میں ضامن مدیون ہوں۔ مقدمہ ہذا میں مورخہ 17-10-09 کو میری جائیداد کی نسبت نیلام عام کی کارروائی چل رہی ہے۔ آئندہ تاریخ پیشی پر زر ڈگری اگر مدیون کی طرف سے ادانہ ہو اتو بطور ضامن میں ادائیگی کا پابند رہوں گا۔ عدم ادائیگی کی صورت میں میری جائیداد نیلام عام کرنے پر کوئی اعتراض نہ ہو گا۔"
In the light of his statement auction proceedings was stayed.
11. The petitioner again defaulted to pay the decretal amount, therefore, his property was again put to auction, then he moved an application on 11.11.2019 by maintaining that he has already paid Rs. 128,000/-and wants to pay further amount of Rs. 50,000/-and prayed for stay of auction proceedings. In support of his application, he submitted his affidavit in the following terms:
یہ کہ حلفاً بیان کرتا ہوں کہ اجراء مندرجہ عنوانِ بالا میں من مخلف مدیون نمبر 2 نظام کا ضامن ہوں اور کارروائی اجراء میں نیلامی کا حکم ہوا ہے۔ من مخلف نے امروزہ مبلغ 50 ہزار روپے جمع عدالت کر دیے ہیں اور مبلغ 50 ہزار روپے مورخہ 19-11-12 جمع کروادوں گا۔ میری نیلامی رو کی جائے۔ یہ کہ حلفاً بیان کرتا ہوں کہ باقی زر ڈگری بھی ادا کرنے کا پابند رہوں گا۔"
In the light of said submission, the learned Executing Court vide order dated 11.11.2019 stayed the auction proceedings and adjourned the matter to 12.11.2019. Petitioner submitted further amount of Rs. 50,000/-on the given date.
12. The learned appellate Court keeping in view the petitioner’s above referred statement dated 07.10.2017 and his affidavit dated 11.11.2019 declared him liable to pay the whole decretal amount vide impugned order dated 05.03.2022. Whereas, perusal of the above referred statement and affidavit reflects that the petitioner bind himself to pay the decretal amount being the ‘surety’ and not given any fresh surety bond for the satisfaction of whole decree. Admittedly, the petitioner stood surety for Rs. 4,00,000/-only and on 07.10.2017 the outstanding decree was also not more than
Rs. 4,00,000/-.
13. It is argued on behalf of the Respondents No. 2 to 4 that this Court also declared the petitioner is liable to pay the whole decretal amount while deciding Writ Petition No. 11283 of 2019 titled “Masood-ul-Hassan v. Judge Family Court & others”. From the perusal of said order, it appears that the petitioner assailed the order dated 22.06.2019 of learned Executing Court whereby his property was put to auction. This Court while dismissing the said writ petition vide order dated 24.07.2019 observed as under:
“Having considered the submissions made by the learned counsel it is observed that the writ petition is wholly misconceived and untenable. Undeniably a decree was passed by the Family Court, execution proceedings started for the enforcement of decree, the petitioner opted to furnish surety on behalf of the judgment-debtor and that the judgment-debtor failed to discharge his liability under the decree. This being so, the learned Judge Family Court was legally justified to proceed against the surety who had committed and undertaken to satisfy the claim of decree-holder in the event of default on the part of judgment debtor. Undeniably, the judgment-debtor had failed to pay off the entire decretal amount and was not willing to satisfy the decree completely in result; the learned Judge Family Court was legally justified to proceed against the surety. Even otherwise, having furnished the surety to pay off the liability of judgment-debtor, the petitioner could not be allowed to find fault with order or to extend lame excuses to save his skin. The order for filing of the schedule for auction of the property of the surety and for its auction, in the given circumstances, does not suffer from any error of law. The order being interlocutory, no appeal being competent, the learned Addl. District Judge rightly declined interference.”
From the perusal of the above observation, it is clear that this Court only settled that in case of non-payment of decretal amount by the judgment debtor, the surety would responsible and in case of default on the part of surety, his property would be liable to be auctioned for the satisfaction of the decree. The only question before this Court was that whether the property of surety can be auctioned or not. A general observation was given by the Court and it was not decided to what extent the present petitioner/surety would be responsible, as this was not a fact in issue before the Court at that time.
14. From the perusal of the decree, it appears that no specific decree has been passed against Respondent No. 5. Said decree was consisting upon two parts i.e. a decree for recovery of maintenance allowance and a decree for recover of dowry articles. A decree for maintenance allowance also consisted upon two portions as it was passed in favour of Respondent No. 2/Plaintiff No. 1 wife of the Respondent No. 6 and in favour of Respondents No. 3 & 4 minors children of Respondent No. 6. Respondent No. 5 is grandfather of the minors and he can be bound only to the extent of maintenance of the minors being their grandfather, if he has easy circumstances to pay the same. Therefore, when the Courts have let off/released Respondent
No. 5 Muhammad Nizam from the responsibility of satisfying the decree, then how his surety is responsible to satisfy the same.
15. A surety’s liability is co-extensive with that of the judgment debtor and he was as much bound by his undertaking as was the judgment debtor, and both were collectively and severely liable to make payment to the decree holder. While construing the tenure and extent of surety bond, the words and recitals of the surety bond must be taken into consideration to gather the intention of the executant of said bond and the bond must be strictly construed. A surety is liable only upto the extent to which he is clearly bound.
16. Through the order dated 28.11.2015 the learned executing Court directed Respondent No. 5 to submit surety bond of
Rs. 400,000/- with one local surety in the like amount and in compliance of said order, the petitioner submitted surety bond of
Rs. 400,000/-on 03.12.2015 and vide order dated 29.01.2016 the learned executing Court on submission of surety bond of Rs. 400,000/-released Respondent No. 5 which facts clearly established that the petitioner was stood surety only of Rs. 400,000/-. Contract of surety had provided that maximum he was liable to the tune of Rs. 400,000/-. Orders of learned executing Court did not find mentioned that the Respondent No. 5 would arrange a surety for the payment of the entire decretal amount. Petitioner stood surety amounting to Rs. 400,000/- only, which he has paid before the learned Executing Court on different occasions as detailed in his application to discharge him from the liability as surety. Said fact was not denied by Respondents No. 2 to 4. In these circumstances, the petitioner has satisfied the amount for which he stood surety.
17. For the foregoing reasons, learned Appellate Court has erred in law while allowing appeal of Respondents No. 2 to 4 and dismissing the application of the petitioner. Hence, by accepting this petition impugned order passed by the learned appellate Court dated 05.03.2022 is set-aside and order dated 28.09.2021 passed by the learned Executing Court is restored.
(Y.A.) Appeal accepted

Minor is not always the best judge of where his or her welfare lies

Dr. Muhammad Asif Mirani Versus ADJ Layyah, etc.

2024 CLC 1520

Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardian and Wards Act, 1890. 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 legal. The right of custody of minor is subordinate to the fundamental principle i.e. welfare of the minor. Maintaining the children is the duty of father which cannot be a decisive factor in custody of the minors. 

The petitioner/fatherhas contracted second marriage and has one daughter by the second wife as admitted by him in the crossexamination. Unless established otherwise through cogent and reliable evidence, it cannot be presumed that a stepmother could be substitute for the real mother in the matter of upbringing of the minor. She is stranger to the minors born from respondent. In the presence of her own child and presumably will have more children in future, she may have little care for the step-children, however, there may be exceptions to that which require proof which is not available in this case. On the other hand, respondent/mother has not contracted second marriage and even she has stated in her examination in chief that she has no intention to do so.

In this day and age, when pursuit of education and career does not attract any disqualification for a father to seek custody of minor, how a mother can be discriminated on that basis. Working mothers are a reality of the day and their participation in the professional life is essential for the progress of societies. It makes roles of women even harder, which needs to be recognized and appreciated rather than discouraged or made more onerous by attributing disqualifications vis-à-vis custody of the minors. This does not mean that the Courts should become insensitive to the needs of the minors merely because their mother is a working woman. Welfare of the minor remains primary consideration for determining his or her custody. It is only recognition and adjustment of expectation from a working mother in comparison to a stay-at-home mother so that the former is not unreasonably put to any disadvantage.
Dr. Muhammad Asif Mirani Versus ADJ Layyah, etc.
2024 CLC 1520

فیملی مقدمات میں نان و نفقہ مقرر کرنے بارے لاھور ہائیکورٹ کا رہنما فیصلہ۔

Maintenance fixation by family court
PLD 2022 Lahore 840
فیملی مقدمات میں نان و نفقہ مقرر کرنے بارے لاھور ہائیکورٹ کا رہنما فیصلہ۔
ہائیکورٹ نے اس فیصلہ کی نقول پنجاب کے تمام ججز اور پنجاب جوڈیشل اکیڈمی بھجوانے کی ھدایت کی ہے
Justice Jawad Hassan authored a landmark judgment on the issue of maintenance fixed family courts in a mechanical manner and observed that "Adjudications in Family Courts reflect their detachment from the realities of the current socio-economic situations of the Country. Stereotype orders are passed arbitrarily and mechanically, that too, in deviation to the legislation which can benefit nothing, but they will make way for multiplication of litigation amongst parties forcing them not only into unfathomable agonies, but burdening them with certain financial obligations as well ending up in further economic distress and plight.
This constitutional petition decided an important question of law with regard to procedure provided for fixing maintenance allowance enacted in shape of Section 17A(4) of the Family Courts Act, 1964 (the “Act”) which is being ignored frequently by the Family Courts resulting into arbitrarily fixing amount of maintenance and passing of stereotype orders/judgments eventuating in serious miscarriage of justice in utter disregard of intent of Statute; pathology of Section 17A(4) of the Act; anatomy of Schedule under Section 5, Part-1 and judicial anthology of the decisions of apex as well as this Court which are binding on the Family Courts under Article 189 and 201 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”). The Issue.
The subject matter, is of great technical complexity, but the legal question which falls for determination by this Court is the fixing of maintenance allowance by the Family Court without considering the provisions of law and how it can be applied for the benefit of parties at lis.
Section 17-A of the “Act” was amended in 2015, wherein Section 17-A(1) starts with the words “suit for maintenance” and it deals with the interim maintenance of wife and the child, whereas Section 17-A(4) deals with final maintenance allowance. In order to elucidate and interpret Section 17-A(1) ibid the legislature has emphasized to pay interim maintenance on first appearance of the defendant. Upon assiduous perusal of the provisions of Section 17-A ibid, it can be gleaned that the use of the terms “fix” and “fixing” in sub-section 1 and 4 of the said Section 17-A is of much relevance. The term “fix” in itself is defined by the Black’s Law Dictionary as “to liquidate or render certain”. Whereas, “fixing” is the act of doing so. The, use of both said terms “fix” and “fixing” respectively arise in Section17-A (1) of the “Act” to fix interim maintenance and in Section17-A (4) of the “Act” for fixing final maintenance. 13. The question now arises whether the Family Court has unguided un-fettered and un-bridled and arbitrary powers to fix maintenance while employing its discretionary dominion at its discretion or is it required to proceed on pragmatic, rational and judicial basis? The answer, of course, is that it should proceed on the later. Family Court should adopt an objective approach and broadly look into the social status of the parties, the earning of the defendant, his capacity to pay and most importantly, the requirements of the claimants while fixing the maintenance.
It can not be denied at all that a husband is under legal, moral religious obligation to maintain his legally wedded wife. Section 272 of Mohammdan Law by Mullah provides that husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders but he is not bound to maintain her if she refuses herself to him or otherwise disobeys. Section 278 postulates that if a husb and refuses to maintain his wife, she may sue for maintenance. Nafqa Hence, it is t he obligation of husband to pay or maintenance, if construed in accordance with the principles as laid down in "HIDAYA" Hamilton in Chapter XV such as "Nafqa" translated by Charles , in the language of law, signifies all those things which are necessary to support of life, such as food, clothes and lodging. Moreover, it is further demonstrated that when a woman surrenders herself into the custody of her husband, it is incumbe nt upon him to supply her with food, clothing and lodging, whether she be a Muslim or an infidel, because maintenance is a recompense for matrimonial restrain, whence it is that where a person is in the custody of another on account of any demand, or so fo rth, his subsistence is incumbent upon the other. demonstrates that The jurisprudence developed by Islam it is the duty of a Muslim wife to perform her part of obligation first for setting in with claim of maintenance. The husband may refuse to maintain hi s wife when she refuses to 5 . live with him and if a wife refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his wife, she is not entitled for maintenance.
In Islamic law, a father is under legal, moral and obligation to maintain his children till the religious age specified by law/sharia and it shall not be out of context to mention here that his such obligation originates from esteemed dictates of Holy Quran.
This Court is in no doubt that the Family Court should keep in consideration the following aspects and legal requisites before passing the interim and final maintenance allowance under Section 17-A(1and 4) ibid: (i) Basis of averments in plaint; (ii) other supporting documents on record; (iii) summoning all relevant documentary evidence; (iv) determining the estate; and (v) determining resources of the defendant.
Procedure to be followed by the Family Courts
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For implementation of purpose of the “Act” aimed at much needed expeditious disposal of disputes, the “Act” has brought in certain powers, procedure and parameters for the Family Courts for being adhered to. Hence, there can be no qualms about the fact that the Family Court has to exercise its powers so conferred vide provision of Section 17-A of the “Act”. Thus, the Family Court is legally obliged to assess the quantum of maintenance as per dictate and criteria mentioned in Section 17-A(4) of the “Act”.
In connection thereto, time and again formulated guidelines as well as principles settled by superior courts are overlooked by the Family Court. In a bright/clear situation of abovementioned inability of Respondent and shortfall on his part, Family Court itself was empowered to step ahead with procedure enunciated in sections 17 (4) and 17B ofA the “Act” for requisite inquiry destined for absolute and unambiguous determination of his ‘estate’ and ‘resources’ including his salary/monthly income to finally fix maintenance allowance in issue. Nonsettled adherence of law, formulated guidelines and principles thus can’t be guarded for being allowed to breath any further.
Judicial resources need to be promptly and consistently available to litigants for the core functions of fact finding, particularly when law itself is available for rescue. Therefore, in all cases where the occupation, job or source of income of the person is definite and identified and of such a n ature remuneration, income or earnings wherefrom can be traced in a documented form then by all extent and measures, it is the duty of the Family Court to ascertain the ‘estate’ and ‘resources’ of the defendant defined above, in all such cases where the sa me stands undetermined or pleadings are evasive or just formal without substantive or believable proof in this regard and by way of summoning the relevant documentary evidence instead to settling with sole reliance upon the pleadings/averments of the parti es without due application of mind and exercise of its powers specifically conferred by way of legislation. It is neither unusual nor whimsical for the Family Courts to delve into the relevant documentary evidence dealing with the financial status of the d . efendant to determine the maintenance.
It is well established that the procedural laws are enacted to advance ca use of justice and not to thwart the same, which intent of law is no doubt always aimed at the welfare of its subjects. So, it is need of the day to employ legislated processes that are more accessible and more responsive for children, parents, and familie s. The Family Courts must adopt therapeutic and holistic approach to the Court structure and processes, as well as to decision making in family disputes.

The Registrar of this Court is also directed to make sure transmission of copy of this judgment to all District Judges of the Punjab for its circulation amongst Family Courts discharging duties under their supervision for strictly following provisions of the “Act” in true spirit whilst dealing with issue of fixing maintenance allowance. A copy of this judgment shall also be sent to Director General, Punjab Judicial Academy which functions under Section 4 of the Punjab Judicial Academy Act, 2007 and prescribes manner of training to judicial officers in terms of Section 5 of the Act ibid. 

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