2002 PLP 3273 (YLR)

11. In a nutshell, the learned counsel for the petitioner vehemently argued that the petitioner was liable to maintain Taimoor till he reached the age of 15 years, which was on 25‑12‑1994 and petitioner had already deposited a bank guarantee for the entire decretal amount as directed by the Honourable Supreme Court of Pakistan, which was en cashed by the respondent, therefore the petitioner had discharged his entire liability. He has stated however, that money is no consideration for the petitioner he merely wants the question of his liability to be determined authoritatively by the Court. He is neither a callous nor a negligent father, and he wishes his son to have the best education and upbringing, but the mother of the minor has created acrimony between father and son by pursuing these proceedings to satisfy her own ego.

12. Learned counsel for respondent No. 1, has raised the preliminary objection that this writ petition is not maintainable, since the petitioner had already challenged his liability to pay maintenance to respondent Taimoor; and the matter had been settled by the Honourable Supreme Court of Pakistan as to what was the liability of petitioner in respect of maintenance of Taimoor; that the petitioner had not raised the question of majority before the Court at any stage when the question of maintenance was being addressed, and he could not raise this issue during execution proceedings, and the Executing Court had no jurisdiction to go behind the decree, since all questions regarding maintenance had already been decided up to the Supreme Court and could not be reopened in objection petition before the executing Court. He has placed reliance on the following cases:‑ (a) 1994 CLC 800 (at 808) Ali Shah v. Allah Ditta. (b) 1994 SCMR 22 Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others. (c) PLD 1978 Lahore 1078 Syed Anwar Ali Shah v. Syed Niaz Ali Shah. (d) PLD 1984 Lahore 179 (at 182) Muhammad Saleem alias Seema v. Sardar Khan.

13. It is argued that the petitioner has approached this Court in its extraordinary Constitutional jurisdiction seeking equitable and discretionary relief, but his conduct does not entitle him to any such relief; his sons from his other marriage are all being educated abroad, one is at Dartmouth College, while the other is at the University of Texas, while for maintenance of respondent No.1, he is acting in a discriminatory manner and is not even willing to see him through High School. Therefore, he is not entitled to any equitable relief.

14. On merits it is argued that question of majority is to be determined according to the cultural milieu and surrounding circumstances of the case. Learned counsel has relied on judgment cited as Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75, to argue that a child must be maintained until it is in a position to earn its own livelihood in an honest and decent manner in keeping with the family status. Learned counsel has also relied on the following verses of the Holy Qur'an: Sura Al‑Araf Chapter 7 Verse 199: Adopt forgiveness, enjoin good practice, URF (CUSTOM) and turn aside from the ignorant.

1. Sura Al. Baqra Chapter 2 Verse 236: (Principle) The wealthy according to his means and the poor according to his circumstances a provision according to custom URF. It is a duty on the doers of good. He has also argued that Istehsan and Masaleh Mursala as sources of Islamic law are involved, particularly when the Qur'an, Sunnah and Ijma are conspicuously silent on the question of maintenance, the purposes of Din would be kept in view. Preservation and making the children good, educated persons and equipping them with latest knowledge according to family practice is the purpose of Religion.

15. I have heard the learned counsel for the parties and have perused the record with their able assistance, and have also examined the judgments cited by both the learned counsel at the bar. The first question to be addressed is as to whether the execution petition had been properly filed before the proper Court and as to whether the Court has jurisdiction to pass orders on the same.

16. The original decree for maintenance on the application of respondent No.1 Taimur, had been passed on 2‑10‑1996 by the learned Judge Family Court, Lahore, therefore, the execution petition was also to be filed before the same Court under section 13 of the West Pakistan Family Courts Act, 1964, therefore, it was the proper Court to file the execution petition and it had jurisdiction to enforce the decree. As regards the competency of the person filing, originally the suit for maintenance was filed on 11‑7‑1994 on behalf of Taimur by Shereen Masood, mother and next friend of Taimur, while he was still a minor, which was decreed on 2‑10‑1996. The execution petition was also filed by her on 22‑10‑1996. The proceedings remained stayed till the petitioner's appeal was dismissed by the Supreme Court on 3‑3‑1999. During this period respondent No. 1 attained majority on 25‑12‑1997. On 9‑3‑1999 an application was filed under section 151, CPC for continuation of the execution proceedings. Respondent No. 1 executed a power of attorney in favour, of his mother Shereen Masood during the pendency of these proceedings and thus the irregularity, if any, in filing application for revival of the execution proceedings was cured. It has been held by the august Supreme Court in numerous cases, that technicalities should not be allowed to stand in the way of substantial justice. Reference can be made with advantage to the following cases: (PLD 1985 SC 345) Mst. Ghulam Bibi and others v. Sarsa Khan and others. . (1992 SCMR 1974) Allah Ditta v. Barka Ali and others. (PLD 1993' SC 332) Mir Mazar v. Azim. (1993 SCMR 1304) Master Musa Khan and others v. Abdul Haq and another. (PLD 1993 Lahore 791) Sheikh Rashid Ahmed v. Election Tribunal.

17. The petitioner had also raised the objection that the executing Court could not pass an order for the arrest of the petitioner when the decree‑holder had filed an application for attachment of his property, which was also not properly described in the application for attachment. According to section 13(3) of the Family Courts Act:- Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree‑holder. Under section 80 of the Land Revenue Act, 1967, arrears of land revenue may be recovered inter alia. (b) by arrest and detention of his person under section

82. It has beer, held in case cited as PLD 1993 Karachi 159 Qurban Ali Khan v. IVth Civil and Family Judge, that: Words "if the Court so directs" vest discretion in the Family Court to adopt the extremely coercive method for recovery of the decretal amount as arrears of land revenue. Therefore, the Executing Court could use any coercive method to ensure execution of the decree. In any case, only bailable warrants of arrest of the petitioner were issued in order to ensure the payment of decretal amount. The petitioner could make payment of the decretal amount or deposit bank guarantee with the Executing Court in order to avoid arrest, which he did, therefore, it is held that the Executing Court had the jurisdiction to entertain the execution petition, to pass such orders as it considered appropriate for ensuring the recovery of the decretal amount and the impugned order dated 22‑7‑1999 was within its jurisdiction.

18. The next question to be addressed is as to whether the contention that the age of majority of respondent Taimur should be reckoned according to the Majority Act, 1875, or according to the provisions of Muslim Law, could be agitated before the Executing Court by the petitioner. The learned counsel for respondent No.1 has rightly pointed out that the petitioner had opposed the suit for maintenance filed by respondent No.1 upto the apex Court but he had never agitated this question at any stage. It is pertinent to note that the suit for maintenance was filed by respondent No.1 on 11‑7‑1994 and was decreed on 2‑10‑1996. According to the contention of the petitioner. Taimur attained majority on 25‑12‑1994 under Muslim Law, and was not entitled to any maintenance thereafter. The suit for maintenance was still pending before respondent No.2 on 25‑12‑1994 and this contention could have been raised by the petitioner in his written statement and/or during arguments; during the appeal, the writ petition or the C.P.L.A. filed by the petitioner. However, he did not raise this contention at any stage during the proceedings regarding maintenance. Even in ground (a) of his objection petition filed on 24‑5‑1999, he specifically stated that Taimur had attained age of majority on 25‑12‑1997. Therefore the petitioner is estopped by his own statement and conduct to raise this contention at any subsequent stage, particularly in execution proceedings. The cases cited by the learned counsel for the petitioner are of no help to him, since they all pertain to the executability of the decree and not to any questions which pertain to the substance of the decree. The question as to whether age of majority of Taimur is to be reckoned under the Muslim Law of under the Majority Act, should have been properly raised at some stage in the previous round of litigation in the suit for maintenance which the petitioner had vehemently contested up to the apex Court but this question was raised by him for the first time on 18‑8‑1999 before respondent No.3. It is patently an afterthought and has been agitated merely to further delay the recovery of the decretal amount and payment of the same to the decree‑holder. It is a device to deprive the decree‑holder of the fruits of the decree. It has been held in Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others (ibid), that:‑‑ Questions which could have been raised in proceedings in suit but were not raised could not be urged by the judgment‑debtor before the Executing Court, which was bound to execute the decree as it was. The judgment debtor could not contend before the Executing Court that his liability was not correctly assessed or determined. In execution proceedings he could not take up plea which had not been raised before trial Court during course of hearing of suit which was ultimately decreed and decree became final once a decree was passed it had to be executed in its terms and it was not open to the Executing Court to go behind it to determine the liability of parties. The ratio of the above‑cited case is applicable to the circumstances of the present case. Therefore, it is held that the question of age, of majority of Taimur could not be agitated by the petitioner in execution proceedings

19. Even otherwise, the age up to which a child is entitled to maintenance, has not been specifically mentioned in the Holy Quran or the Sunnah of the Prophet (peace be upon him). Muslim jurists have given different views on the subject, some of which have been cited by the learned counsel for the petitioner.

20. The rules of the Shariah can be divided into two main categories: (a) Those relating to religious observances Ibadat (b) Those pertaining to worldly transactions ‑Muamalat. The purposes of the rules governing transactions can be discerned by reason. They are based on bringing benefits to the people and protecting them against evil. Benefits are permitted while evils are forbidden. Since the interests of the people are the basis of all laws, it is both necessary and reasonable that Shariah rules should undergo changes to suit the changing times and that these rules be effected by the social organization and environment.

21. In Islam, the majority of jurists have accepted the principle of change in legal rules. Ahkam Ghayr Mansusa (not revealed laws), can be easily changed. However, if the rule is based upon a text of the Qur'an or Sunnah, and is related to matters of religious observance, it is firmly fixed and unchangeable. On the other hand if a text relates to worldly transactions, the rule would be to consider the meaning and understand the causes upon which such text is based. Many Jurists, including the Caliph Umar and Imam Abu Yousuf have endorsed the possibility of change in the interpretation of the texts, because of a change in their causes or in the customs upon which they were based, or in answer to necessity and public interest. (Views of Shatibi and Ibne Hazm, as cited by Sobhi Mahmassani, in Falsafat‑al‑Tashri fi al -Islam. Leiden E.J. Brill, 1961.

22. The Holy Prophet (peace be upon him) said: "If I order you to do something concerning your religion, heed my order, but if I order you concerning an opinion of mine, why I am merely a human being, you are better informed on matters relating to your daily life." He also said:‑ "Make things easier not more difficult bring good tidings to the people and do not drive them away. " (Muslim as cited by Mahmassani pp. 118 (ibid) The Quran Says: "Allah desireth for you ease, He desireth not hardship for you".(Surah II: 185) The spirit of the Shariah is thus founded upon public interest, public good and the facilitation of life in general and the State is obliged to enact laws, which safeguard the interests of all the people.

23. Syed Ameer Ali in his book titled Mahommedan Law, observes that the maintenance of children is obligatory on the father. The obligation of maintaining male children lasts until they arrive at puberty. However, he adds, "If the male children are actually able to work, but the employment found for them is unsuitable or improper for their rank in life they should be placed on the same footing as children labouring under some infirmity. Ability to work must, in such cases, be considered with reference to the social position of the children as well as the parents so that a father occupying a respectable position, in which the children have been brought up delicately, must not hire them out for work which is degrading in its nature. (pp 386).

24. The judgment cited as PLD 1970 SC 75 Alaf Din v. Mst. Parveen Akhtar is the authoritative view of the Supreme Court of Pakistan on the question as to the age that a son is entitled to maintenance froth his father. The relevant portions are reproduced: Whether child in position to maintain itself Depends on status and circumstances of each family ‑ Word "maintenance" ‑ Includes education but not education at higher level ad infinitum. The word "child" has not been defined in the code. Though the word "child" is its widest sense may mean any son or daughter or any progeny yet, it cannot extend to embrace within its fold a person of 40 or 50 just because his parents are alive. "Unable to maintain itself": Normally a child, after attaining majority, would be physically in a position to maintain itself, for, it would then be capable of earning some kind of livelihood. But this again is a question, which will depend upon the status and circumstances of each individual family. Thus, although the section does not make any reference to the age of majority, it is a consideration which must inevitably be taken into account by the Court when deeding the question as to whether the child is or is not able to maintain itself. He/she has already found suitable gainful employment and is in a position to maintain himself or herself. 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 imagination, be extended to incorporate within it 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 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 it by working as Cooly or by thieving. What is required is that the child must be maintained until it is in a position to earn its own livelihood in an honest and decent manner in keeping with family status.

25. The learned counsel for the Petitioner has objected that this judgment is based on the provisions of section. 488, Cr.P.C. therefore, it is not applicable to the present case. This objection is not sustainable, since the age upto. which a male child is to be maintained, is a question, which does not arise out of the interpretation of section 488, Cr.P.C. It is an independent question of fact and law, which has been addressed, in the above‑cited judgment of the Supreme Court.

26. It is also to be noted that the petitioner has approached this Court in its equitable and discretionary jurisdiction. It is an oft quoted maxim of equity that, " He who seeks equity must do equity". The conduct of the petitioner has been inequitable and discriminatory as between respondent No.1 and his other male children. The learned counsel for petitioner emphatically stated that money is no consideration for the petitioner yet he has deliberately avoided paying maintenance to respondent No.1, who is admittedly his son and is not in a position to earn his own livelihood, and has raised frivolous objections in his objection petition in order to delay discharging his undisputed liability as long as possible. Therefore, he is not entitled to any relief in exercise of equitable jurisdiction

27. In view of the above discussion, this petition has patently been filed with mala fide intentions and is without merit. It is accordingly dismissed with costs throughout. S.A.K./D‑32/L Petition dismissed.