Custody of minors --- " Guardian " --- Maintenance , right to --- Scope --- Law maintains a distinction between custody and guardianship and ...........

 PLD 2023 Lahore 433

Custody of minors --- " Guardian " --- Maintenance , right to --- Scope --- Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardians and Wards Act , 1890 ( ' Act ' ) --- Definition of " guardian " in S. 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 --- Father is considered to be a natural guardian of a minor , 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 --- Liability to maintain the minor is not only religious and moral but also legal --- 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 .

PLD 2023 Lahore 433
' Minor ' --- ' Guardian ' --- ' Ward ' --- Meaning --- Unless there is something repugnant in the subject or context , S. 4 of the Guardians and Wards Act , 1890 , defines the ' Minor ' as a person who , under the provisions of the Majority Act , 1875 , is to be deemed not to have attained his Majority ; the ' Guardian ' means a person having the care of the person of a minor or his property , or of both his person and property and the ' Ward ' means a minor for whose person or property or both there is a guardian.

PLD 2023 Lahore 433
Custody of minors --- Guardianship --- Visitation rights --- Scope --- Question before High Court was whether the provisions of Mental Health Ordinance , 2001 , contradict and repeal the Family Courts Act , 1964 , to take away jurisdiction of the Family Court qua custody of minors who are suffering from any mental disability and vest the same in the Court of Protection --- Held ; main crux of the Mental Health Ordinance , 2001 .essentially relates to psychiatric facility and management of property of the mentally disabled persons and appointment of guardian under the Mental Health Ordinance , 2001 --- Dispute inter se parents of a minor for his or her custody and / or guardianship is manifestly not a subject matter of the Mental Health Ordinance , 2001 , which falls within the exclusive domain of Family Court even when the minor suffers from any disability --- Provisions of Mental Health Ordinance , 2001 , do not contradict and repeal the provisions of S. 5 read with Entries Nos . 5 and 6 of Part I of the Schedule to the Family Courts Act , 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 ... Overriding effect of the Mental Health Ordinance , 2001 , as provided in S. 60 thereof , is limited to cases of conflict .

PLD 2023 Lahore 433
Custody of minor girl ... Mother , entitlement of - Scope --- Mother of minor girls is entitled to their custody unless there is anything available on record to disentitle her
Repeal by implication --- Scope --- Legislature is normally not [ Wo contradictory to keep presumed to have intended enactments on the statute book with the intention of repealing the one with the other , without expressing an intention to do so --Such an intention cannot be imputed to the legislature without strong reasons and unless that is inevitable --- Before adopting the last - mentioned course , it is necessary for the courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication . ----
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.

Application for the custody of minor girl --- Due service --- Fair trial --- Service upon the defendant --- Presumption --- Mother and minor girl ................

 PLD 2023 Lahore 412

Application for the custody of minor girl --- Due service --- Fair trial --- Service upon the defendant --- Presumption --- Mother and minor girl were living at a place / district different from the place / district where the father moved application for custody .... Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree --- Petitioner / mother claimed that neither she was personally served nor she had any knowledge of the case proceedings --- Held , that primary controversy for the Court , in the present case , was that whether the mother was served in accordance with law before decree I was passed against her --- Without framing issues and recording evidence , the Court below had decided the factual controversy qua residential address of the mother / petitioner while relying on the photocopy of her alleged second marriage in district " K " , produced by the respondent / father --- Court also presumed the petitioner's knowledge of proceedings and service of summons on the basis that notice along with registered envelope AD were sent on her district ' K ' address and that notice was also proclaimed in the newspaper having been circulated / published from relevant division --- Neither the process server was ] produced as a witness , in the present case , to establish personal service of summons under S.8 of the Family Courts Act , 1964 , upon the mother / petitioner in accordance with law , nor any reference to his ( process server's ) report to the said effect had been made in the impugned order --- In the absence of any acknowledgement due available on record , service of the notice been presumed by the Court below merely on the basis of al receipt available on record --- Without establishing on not be served rd that the mother / petitioner could rsonally , reliance on publication of the notice could not be considered safe to presume service of the mother / petitioner , particularly when father / respondent himself alleged in his petition for custody that she was an illiterate villager --- High Court set - aside impugned order and allowed the application of mother / petitioner for setting aside ex - parte judgment and decree --- Application of father for the custody of minor girl . would be deemed to be pending , at the place mother and minor were residing , for decision afresh in accordance with law

Custody of minor girl --- Welfare of minor --- Decision upon the custody of minor girl , as far as practicable , must be made on merit on the basis of her welfare being paramount consideration in law .

Custody of minor girl --- Welfare of minor --- Due service --- Fair trial ---- Guardian Court dismissed application of the petitioner / mother for setting aside ex - parte judgment and decree --- Held , that in the absence of proper service and adequate opportunity of hearing granted to both sides , any determination of welfare of the minor could not be termed as lawful and satisfying the requirement of fundamental right to fair trial as guaranteed under Art . 10 - A of the Constitution of Pakistan

-- Ss . 5 , Sched . & 17 --- Oaths Act ( X of 1873 ) , S. 11 --- Recovery of dower and dowry articles --- Wife taking special oath in regard to dower against husband offering to be bound by oath -

 2023 S C M R 153

Family Courts Act ( XXXV of 1964 ) ---
--- Ss . 5 , Sched . & 17 --- Oaths Act ( X of 1873 ) , S. 11 --- Recovery of dower and dowry articles --- Wife taking special oath in regard to dower against husband offering to be bound by oath --- In the present case the and dowry articles upon offer made by husband --- Evidence conclusive husband - petitioner filed an application for special oath which was accepted by the wife - respondent and the special oath was taken in the mode and manner proposed by the petitioner --- Due to the mutuality of the promise between the parties , the party making an offer has no right to resile from it after the offer is accepted and the special oath is taken --- In the absence of any such satisfactory or sufficient cause the Court is obligated to implement the agreement and to record the statement of the party concerned to make a decision in the case accordingly --- Petitioner could not wriggle out or withdraw his offer which was given by him voluntarily before the Family Court and the same was acted upon according to his will --- Petition for leave to appeal was dismissed and leave was refused .


Entitlement for lump sum for iddat period--Appeal of respondent was partially accepted--Modification in judgment--Financial status-

 PLJ 2023 Lahore 143
[Rawalpindi Bench, Rawalpindi]
Present: Jawad Hassan, J.
ZIA HUSSAIN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE and others--Respondents
W.P. No. 2832 of 2018, heard on 25.1.2022.

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

----Ss. 8 & 9--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage and recovery of maintenance allowance--Decreed--Held: Entitlement for lump sum for iddat period--Appeal of respondent was partially accepted--Modification in judgment--Financial status--Petitioner was not attached any document with written statement regarding his financial status--Petitioner had ample opportunity to prove his financial status even at documentary stage and till decision of suit but not only he, rather his witness, failed to do so--Petitioner has deliberately hidden his source of income from Court just to avoid payment of maintenance allowance to minors--Appellate Court, while considering evidence and needs of minors, enhanced maintenance allowance as no documentary proof was produced by Petitioner before it--Respondent No.3 has failed to bring on record any document to prove income of Petitioner as alleged--Both parties have failed to make out their case in any manner for interference in findings of fact of Courts below which is based on oral as well as documentary evidence produced by parties--Petition dismissed.

                                                      [Pp. 147, 148 & 149] B, C, F, G & H

Constitution of Pakistan, 1973--

----Art. 199--Exercising of lawful jurisdiction--Maintenance--Findings on fact recorded by a competent court in exercise of lawful jurisdiction cannot be agitated by invoking writ jurisdiction under Article 199 of Constitution unless same suffer from any legal infirmity, jurisdictional error or perversity causing serious miscarriage of justice.      [P. 146] A

PLD 2013 SC 557 ref.

Words and Phrases--

----“Maintenance” means and includes food, clothing, and lodging which is responsibility of father to pay to his children and wife.

                                                                                             [P. 147] D

Words and Phrases--

----“Legal obligation”--Minors are entitled to be maintained by father in manner befitting status and financial condition of father and for this reason Family Court is under an obligation while granting maintenance allowance, to keep in mind financial condition and status of father--Courts are under legal obligation to make an inquiry in this regard.          [P. 148] E

Mr. Majid Ali Butt, Advocate for Petitioner.

Ms. Shahida Tanveer, Advocate for Respondents.

Date of hearing: 25.1.2022.

Judgment

Through this single judgment, this Court intends to decide the titled petition as well as Writ Petition No.2682 of 2018 filed by the Respondents as both the petitions have been filed against the same judgments and decrees.

2. For the sake of clarity, Zia Hussain is to be referred as (the “Petitioner”, whereas, Mst. Asma Saleem and others are to be referred as (the “Respondents”).

3. The Petitioner has called in question judgments and decrees of the Family Court as well as Appellate Court, dated 25.04.2018 and 01.09.2018, respectively, whereby maintenance allowance in favour of the Respondents has been fixed on higher side. Writ Petition No.2832 of 2018 has been filed by the Petitioner for reduction of the maintenance allowance. On the contrary, the Respondents through W.P.No.2682 of 2018 have assailed the judgments and decrees of the Courts below for enhancement of their maintenance allowance.

4. The facts of the case are that the marriage of Petitioner and the Respondent No.3 was solemnized on 27.11.2003 and they were blessed with two children namely Muhammad Moazam Zia and Abdul Rafay (hereinafter to be referred as “minors”). Due to strained relations between the spouses, the Respondents filed a suit for dissolution of marriage on the basis of khulla, recovery of maintenance allowance and dowry articles. The said suit was contested by the Petitioner by filing written statement, however, the suit was decreed to the tune of Rs.10,000/- per month for each minor from January, 2016 along with 10% annual increase till their age of majority. Mst. Asma Saleem, was held entitled to recover Rs.30,000/- lumpsum only for iddat period while she was also granted dowry articles as per list Ex.P3 except articles mentioned at Sr. Nos. 9, 12 to 14, 17, 18, 23 to 28, 30, 33, 35 and 36 or alternate price Rs.2,00,000/-. Feeling aggrieved thereof, both the parties preferred their respective appeals, however, appeal of the Respondents was partially accepted with modification while that of the Petitioner was dismissed in the following manner:

“In the light of above discussion, appeal of the appellants is accepted partially whereas appeal of the Respondents dismissed and the impugned judgment and decree is modified to the effect that plaintiffs No.2 and 3 shall be entitled to maintenance allowance at the rate of Rs.15,000/- per month from February, 2015 with 10% increase per annum till their legal entitlement whereas impugned judgment and decree to the extent of maintenance allowance of plaintiff No.1 and dowry articles is upheld”.

5. Learned counsel for the Petitioner inter alia contends that impugned judgments and decrees are the result of mis-reading and non-reading of material available on record; that the learned Trial Court wrongly assumed the financial status of the parties and prices of the dowry articles, therefore, confirmation, as well as, enhancement by the learned Appellate Court has been made under a wrong impression; that the maintenance allowance fixed by the Courts below is also exaggerative and has been awarded without looking into financial status of the Petitioner; that no proof of income of the Petitioner was tendered by Respondents and in absence thereof, fixation of maintenance allowance by the learned Courts below is against the norms of justice.

6. Conversely, learned counsel for Respondents contended that though the learned Appellate Court has modified the judgment and decree passed by the learned trial Court and increased the amount of maintenance allowance yet it is not sufficient to cater with daily needs of minors; that the lower Appellate Court has failed to consider the fact that one minor is serious patient of knee joints who needs proper medication and treatment for which monthly expenses at higher rate are required while the other minor is studying in PAF College, he, too, is in dire need of his educational expenses; that the Petitioner belongs to a rich family and he can easily pay more maintenance to his children.

7. I have heard the arguments of learned counsel for the parties and perused the record.

8. It is an established principle that findings on fact recorded by a competent court in exercise of lawful jurisdiction cannot be agitated by invoking writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 unless the same suffer from any legal infirmity, jurisdictional error or perversity causing serious miscarriage of justice.

9. Plea of the Petitioner is that the Courts below have awarded maintenance allowance at exorbitant rate which he is unable to pay. While the stance of the Respondents is that the Petitioner has strong financial status, who earns handsome income and can easily pay maintenance allowance as prayed for.

10. Admittedly a suit for dissolution of marriage on the basis of khulla and maintenance allowance was filed by the Respondents on 17.12.2016. The Petitioner entered appearance and filed written statement on 27.01.2017. The Family Court keeping in view the evidence of the parties, decreed the suit vide judgment and decree dated 25.04.2018 by awarding maintenance allowance to the minors @ Rs.10,000/- per month with 10% increase till their age of majority while the claim of the Respondents with regard to dowry articles to the tune of Rs.2,00,000/- as alternate price was allowed. The said Respondent was also held entitled to recover maintenance allowance @ Rs.30,000/- lumpsum for her iddate period only. The aforesaid judgment and decree was challenged by both the parties through separate appeals which was decided through consolidated judgment and decree dated 01.09.2018 whereby quantum of maintenance allowance was enhanced from Rs.10,000/- per month to Rs.15,000/- per month while remaining findings of the Family Court were upheld.

11. So far as the ground of the Petitioner with regard to fixation of maintenance allowance at higher side is concerned, it is an admitted position that the Petitioner is a MBBS doctor by profession and during cross examination he admitted that he has not annexed any document with regard to his income with written statement. It is noted that the Petitioner had ample opportunity to prove his financial status even at documentary stage and till decision of the suit but not only he, rather his witness, failed to do so which is clear violation of Section 9 of the Act. Evidence produced by the Petitioner depicts that he had concealed his sources of income from the stage of filing written statement till decision of lower appellate Court and there existed contradictions in the statements on behalf of Petitioner and his father, who was a witness, regarding source of income. The Petitioner appeared as DW-1 and admitted in his affidavit Ex.D1 that he earns Rs.30,000/- per month, for which he has not brought any salary slip to controvert the stance of the Respondents while on the other hand the father of the Petitioner appeared as DW-2 and deposed that the Petitioner pays maintenance allowance after lending money from his brothers and sisters. These contradictions on behalf of the Petitioner and his father clearly reflect the fact that the Petitioner has deliberately hidden his source of income from the Court just to avoid the payment of maintenance allowance to the minors. The Hon’ble Supreme Court of Pakistan in the case reported as "Muhammad Asim versus Mst. Samro Begum and others" (PLD 2018 SC 819) has held that “if the husband/father fails to disclose his salary or financial earnings, adverse inference would be drawn against him”. ‘Maintenance’ means and includes food, clothing, and lodging which is the responsibility of the father to pay to his children and wife. In this regard, it is noted that Section 17(A) of the Act specifically provides in sub-section to fix maintenance. The Honorable Supreme Court of Pakistan has considered the aforesaid issue in the case of “Humayun Hassan versus Arslan Humayun and another” (PLD 2013 SC 557) and held as under:

“Again in interpreting the word “maintenance” some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing, and lodging, it cannot, by any stretch of the imagination, be extended to incorporate within its education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that the child must be maintained until it is in a position to earn its livelihood, in an honest ad decent manner in keeping with its family status.

12. Under the law, a father is bound to maintain his children until they have attained the age of majority. The intent and purpose of the maintenance allowance to a minor child is to enable her/him to continue living at least in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents and it would be quite unjust and against the norms of proprietary if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was achieved by him/her prior to such happening i.e. separation of parents which admittedly has already taken place between the parties. At the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance. The minors are entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. The Courts are under legal obligation to make an inquiry in this regard. It cannot act arbitrarily or whimsically. But in this case, the Petitioner has deliberately concealed his financial status regardless of admitted fact that he is MBBS doctor by profession and runs a clinic.

13. The learned lower Appellate Court, while considering the evidence and needs of the minors, enhanced the maintenance allowance as no documentary proof was produced by the Petitioner before it, therefore, keeping in view the evidence and basic needs of minors, monthly maintenance allowance for minors was enhanced to


Rs.15,000/- per month with 10% annual increase. As far as the question of recovery of dowry articles is concerned, after taking into consideration the oral, as well as, documentary evidence of the parties, and while applying the concept of wear and tear, learned Family Court held that the Respondent No.1 is entitled to receive her dowry articles as per list provided as Ex.P3 except articles mentioned at Sr. Nos. 9, 12 to 14, 17, 18, 23 to 28, 30, 33, 35 and 36 and in the alternate, the price of the same was fixed as Rs.2,00,000/- which finding was upheld by the lower Appellate Court.

14. So far as the stance of the Respondents with regard to enhancement of maintenance allowance of minors is concerned, it evinces from the record that the Respondent No.3 has failed to bring on record any document to prove income of the Petitioner as alleged. Resultantly, the Family Court keeping in view the basic necessities of life of minors and in view of the available record, granted maintenance allowance to them @ Rs.10,000/- per month which was further enhanced by the lower Appellate Court @ Rs.15000/- per month with 10% annual increase till their age of majority.

15. In view of above reasons, both the parties have failed to make out their case in any manner for interference in the findings of fact of the Courts below which is based on oral as well as documentary evidence produced by the parties. Resultantly, both the captioned writ petitions having no merits are hereby dismissed.

(Y.A.)  Petition dismissed

-Suit for recovery of maintenance allowance--Decreed without annual increase--Determination of period of maintenance allowance-

 PLJ 2023 Lahore (Note) 88
Present: Faisal Zaman Khan, J.
Mst. FAZEELAT HASSAN and another--Appellants
versus
MUHAMMAD SHAKEEL ANJUM and 2 others--Respondents
W.P. No. 17385 of 2021, decided on 7.11.2022.

Family Courts Act, 1964 (XXXV of 1964)--
----S. 14--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance--Decreed without annual increase--Determination of period of maintenance allowance--Execution proceedings--Entitlement for arrears of maintenance allowance--Challenge to--It has categorically been mentioned in paragraph No. 7 of plaint that respondent No. 1 deserted Petitioner No. 1 thus executing Court has rightly interpreted judgment and decree passed by Judge Family Court by holding that Petitioner No. 1 is entitled to arrears of maintenance allowance from 02.12.2013--Counsel for petitioner has not been able to highlight any jurisdiction defect or procedural impropriety in impugned order/judgment therefore no ground for interference is made out--Petition dismissed. [Para 6 & 7] A & B
Ch. Muhammad Abdul Rashid, Advocate for Petitioners.
Date of hearing: 7.11.2022.

Order

Through this petition, order dated 05.08.2020 and judgment dated 10.10.2020 passed by Respondents Nos. 2 and 3 respectively have been assailed. By virtue of the former order, while interpreting judgment and decree dated 19.06.2014 passed in favour of the petitioners/decree-holders, they have been held entitled to recover maintenance allowance from 02.12.2013 at the rate of Rs. 10,000/- per month per head with no annual increase and through the latter judgment, the same has been upheld.
2. The only argument advanced by the learned counsel for the petitioners is that the Courts below fell in error in determining the period of recovery of maintenance allowance by holding that petitioners are entitled to recover the arrears of maintenance allowance from 02.12.2013 when the cause of action accrued to them. He, while referring to the judgment and decree under execution submits that the suit was decreed as prayed for thus the observation made by the Courts below is not the correct interpretation of the said judgment and decree.
5. Arguments heard. Record perused.
4. A perusal of the available record would show that in Paragraph No. 5 of the plaint, it was the case of Petitioner No. 1 that one year prior to filing of the suit, when she was pregnant with Petitioner No. 2 she was deserted by Respondent No. 1. In continuation to this in Paragraph No. 7 of the plaint, it has been narrated that Respondent No. 1 deserted Petitioner No. 1 on 02.12.2013 and subsequent thereto, in Paragraph No. 10 thereof, it has been narrated that cause of action accrued to the petitioners a year ago and lastly it accrued to them on 02.12.2013.
5. In the above backdrop, a conjoint reading of Paragraph Nos. 5 & 7 of the plaint would show that it is the case of Petitioner No. 1 that she was deserted by Respondent No. 1 on 02.12.2013, i.e. a year ago however in order to confuse the issue in Paragraph No. 10, she has mentioned that cause of action, accrued to her a year back and lastly it accrued on 02.12.2013.
6. In the above backdrop, since it has categorically been mentioned in Paragraph No. 7 of the plaint that Respondent No. 1 deserted Petitioner No. 1 on 02.12.2013 thus the learned executing Court has rightly interpreted the judgment and decree passed by the learned Judge Family Court by holding that Petitioner No. 1 is entitled to arrears of maintenance allowance from 02.12.2013.
7. For what has been discussed above, since the learned counsel for the petitioner has not been able to highlight any jurisdiction defect or procedural impropriety in the impugned order/judgment therefore no ground for interference is made out, as a sequel to which, this petition fails and the same is dismissed.
(Y.A.) Petition dismissed

Distinction between "custody" and "guardianship".

2023 MLD 1000

Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardian and Wards Act, 1890. The definition of ‘guardian’ in section 4(2) appears 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 legal. The right of custody of minor 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.

Husband can file suit for recovery of gold ornaments which were given to the wife-defendant as part of dower---Said dower had been mentioned in the Nikah Nama.

 2015 CLC 808

Husband can file suit for recovery of gold ornaments which were given to the wife-defendant as part of dower---Said dower had been mentioned in the Nikah Nama.
S. 5, Sched & S.10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on the basis of khula ---Suit for recovery of gold ornaments by husband given at the time of marriage---Scope---Husband's suit for recovery of gold ornaments was decreed by the Family Court but Appellate Court returned the plaint for presenting the same before civil court---Validity---Husband filed suit for recovery of gold ornaments which were given to the wife-defendant as part of dower---Said dower had been mentioned in the Nikah Nama---Suit for dissolution of marriage on ground of khula filed by the wife-defendant was decreed under S.10(4) of West Pakistan Family Courts Act, 1964---Wife-defendant was required to return Haq Mehr to the husband-plaintiff which she had received at the time of Nikah---Issues which had arisen between the parties to a marriage and all matters which would fall under the Schedule of West Pakistan Family Courts Act, 1964 could be adjudicated upon by the Family Court---West Pakistan Family Courts Act, 1964 did not restrict that only claim of dower filed by the wife could be entertained by the Family Court---Present suit was rightly filed before the Family Court and was rightly adjudicated upon by the said court---Appellate Court was wrong to hold that husband could not file suit for return of gold ornaments before the Family Court---Impugned judgment and decree passed by the Appellate Court were set aside ---Appeal filed before the Appellate Court was to be deemed to be pending which should be decided within a specified period---
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