Justice, equity and good conscience' And maintenance for children of charistian parents

`JUSTICE, EQUITY AND GOOD CONSCIENCE' `JUSTICE, EQUITY AND GOOD CONSCIENCE' AND MAINTENANCE FOR CHILDREN OF CHARISTIAN PARENTS By Lucy Carroll The 1981 repeal of Chapter XXXVI of the Cr.P.C. potentially leaves children of the minority Christian community in a vulnerable position. Curiously, the law applicable to South Asian Christians in regard to maintenance has generally been considered to be English common law, which imposes only a moral obligation upon the father to maintain his offspring. It was left to the criminal law to convert the father's moral obligation into a legally enforceable duty. The maintenance provisions of the Cr.P.C, were particularly helpful in regard to the child of Christian parents. Has that child in Pakistan now been turned adrift on the sea of life without the possibility of obtaining succor from the father who begot him? In matters not covered by statutory law and in the absence of recognized and established custom, the Court is directed, to have recourse to `justice, equity and good conscience.' More than a decade and a half ago, the Lahore High Court reinterpreted the phrase `justice, equity and good conscience,' substituting for the implied reference to a foreign legal system, a reference to Islamic principles. Haji Nizam Khan v. District Judge' concerned the liability of a Muslim grandfather for the maintenance of the impoverished children of his predeceased son. Ironically, there was no dispute between the parties as to the liability of the affluent grandfather for the maintenance of his destitute and fatherless minor grandchildren, assuming that Muslim law were applicable to the suit. The grandfather attempted to argue that there was no provision of law which rendered Muslim law applicable in Pakistan to questions concerning `maintenance.' The Muslim Personal Law (Shariat) Application Act of 1937, which established Muslim law (in reference to custom and usage) as the `rule of decision' in cases involving Muslim parties and concerning the various enumerated subjects including `maintenance, had been repealed and replaced by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, in which `maintenance' (probably inadvertently) was not included in the list of subjects. Thus, it was contended, questions of maintenance would fall to be determined by reference to `justice, equity and good conscience,' a phrase which in pre‑1947 practice essentially meant English law. In a 72‑page judgment comprising a learned essay in legal history and jurisprudence, Justice Muhammad Afzal Zullah (as he was then) held (inter B.Sc., Washington State University; MA., Ph.D., University of California. 1 PLD 1976 Lah. 930 alia) that any lacuna in the statutory law would, in the circumstances of post‑Independence Pakistan, be filled by reference to Islamic concepts of justice and equity, not to those of a foreign country. The fact that neither equity nor common law in Christian England recognized the grandfather's legal obligation to maintain his destitute fatherless grandchildren did not mean that such an obligation, recognized by Muslim law, could not be enforced in the Islamic Republic of Pakistan on the basis of Islamic principles of equity. If the question of the Chirstian father's obligation to maintain his child is decided on the basis of `justice, equity and good conscience,' there can be no doubt that a concept of `justice, equity and good conscience' based on Islamic principles (rather than the English common law) would favour the child. However, given the policy of recognizing and respecting the personal laws of the minority communities, Pakistani Courts might be hesitant to apply a version of `justice, equity and good conscience' explicitly founded on Islamic Principles to Christians, and the Christian community might take offence if the phrase were seen to be used to render them subject to Muslim law. At this point a recent decision of the Kerala High Court is relevant. In Scariah Varghese v. Marykutty, a Christian father challenged decree for maintenance passed by the lower Court, arguing that `Christian law does not mandate an obligation on the father to maintain his child." Conceding that there was no statutory provision rendering a Christian father liable for the maintenance of his child in a civil action, except the incidental provisions of the Divorce Act, the Kerala High Court refused to find that this fact concluded the question. In upholding the decree of the lower Court, the High Court invoked `justice, equity and good conscience'‑‑not the `justice, equity and good conscience' which impliedly takes its cue from English law, but a `justice, equity and good conscience' in accord with Indian traditions. [In regard to] matters not governed by statute or where there is no accepted customary law, it is the settled principle that [the] Judge should be guided by that great principle of `justice, equity and good conscience.' Justice, equity and good conscience must be justice, equity and good conscience [in accord] with Indian tradition. A father, an Indian citizen is bound to maintain his children and that is the 2. (1991) 2 KLT 71 2. (1991) 2 KLT 71 at p. 16 tradition of the society and that tradition is in accordance with justice, equity and good conscience. The reference here is to a secular, Indian or South Asian tradition. Surely the tradition that a father is bound to maintain his minor children is no less a part of Pakistani tradition than it is of Indian tradition. If it is not necessary to support this South Asian tradition by reference to Hindu law (when the question arises before an Indian Court), it should not be necessary to invoke Muslim law in its aid when the question arises before a Pakistani Court. The Constitution of Pakistan enjoins upon the State the responsibility for protecting `the marriage, the family, the mother and the child's The child of Christian parents is entitled to this protection no less than the child of Muslim parents. This protection may require the exercise of judicial authority to compel a parent to provide for the maintenance of the child. The decision of the High Court of Kerala suggests that the Family Courts of Pakistan have jurisdiction to decree such maintenance, not merely on `Islamic' principles of justice and equity, but on principles of justice and equity deriving from a broader and more inclusive South Asian tradition. S