P L D 2026 Lahore 181 (PLP)

RAHEEL KAMRAN, J.

By this petition in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter, 'the Constitution') the petitioner assails the vires of judgment dated 03.09.2025, whereby the Additional District Judge, Lahore, while dismissing the appeal jointly preferred by the petitioner and proforma respondent No.5, affirmed the order dated 20.05.2025 passed by the Family Court Model Town, Lahore. Prayer clause of the petition is as under:- In view of the above submissions, it is therefore, most respectfully prayed that this writ petition may graciously be accepted and the impugned judgment dated 03.09.2025 passed by respondent No.1 while upholding the decision of respondent No.2 for paying interim maintenance allowance @ Rs.20,000/- per month and impugned judgment and decree dated 03.06.2025 and interim order dated 20.05.2025 passed by respondent No.2 whereby directed the petitioner to pay Rs.5,000/- to the respondent No.3 being his mother as monthly interim maintenance allowance may very kindly be set-aside and the case remanded back to Trial Court for its decision afresh in the interest of justice, equity and fairplay. It is further prayed that during pendency of the titled writ petition, the operation of the impugned judgment dated 03.09.2025 passed by respondent No.1 while upholding the decision of respondent No.2 for paying interim maintenance allowance @ Rs.20,000/- per month and impugned judgment and decree dated 03.06.2025 and interim order dated 20.05.2025 passed by respondent No.2 whereby directed the petitioner to pay Rs.5,000/- to the respondent No.3 being his mother as monthly interim maintenance allowance along with order dated 11.09.2025 for warrant of arrest of the petitioner in execution of the family suit may very kindly be suspended in the supreme interest of justice, equity and fairplay. Any other relief, which this Honourable Court deems fit may also be awarded to the petitioner.

2. Facts of the case relevant for decision of the instant case are that Mst. Riffat-un-Nissa respondent No.3 (hereinafter, 'the plaintiff') instituted a suit against her four sons, namely Azhar Ijaz Khawaja (petitioner), Ahmar Ijaz Khawaja (respondent No.4), Sabih Ijaz Khawaja (respondent No.5) and Fasih Ijaz Khawaja (not party to this petition), stating that she is an aged and dependent lady having no independent source of income, whereas her sons-defendants, are well-placed and capable of maintaining her in accordance with their financial status. The petitioner contested the suit and filed written statement raising various objections including the stance that the plaintiff is financially independent. Subsequently, the plaintiff instituted another suit for maintenance against petitioner and respondent No.5. In the said second suit, the Judge Family Court, vide order dated 20.05.2025, fixed interim maintenance allowance and directed the defendants to ensure payment on or before 14th day of each month. Upon non-payment, the Family Court, on 03.06.2025, struck off the defence of the defendants by invoking penal consequences under Section 17-A of the Family Courts Act, 1964 and decreed the suit. Appeal there-against was dismissed by the Additional District Judge, hence this petition.

3. Learned counsel for the petitioner contends that the Family Court has no jurisdiction to entertain claim of maintenance of any parent. He maintains that Section 17-A of the Family Courts Act, 1964 applies exclusively to interim maintenance allowance fixed in favour of a wife or a child and therefore the learned Family Court committed material illegality by invoking penal consequences against the petitioner in a suit filed by a mother. He adds that even otherwise the striking off of defence was patently unlawful because the impugned order was passed on the 3rd day of the month despite explicit direction that interim allowance was payable till the 14th of each month. The learned counsel also states that the learned courts below acted with haste and non-application of judicial mind by decreeing the suit prematurely without settlement of issues or recording evidence and that such exercise of jurisdiction cannot be sustained under law.

4. Learned counsel for the respondent-plaintiff controverts the submissions advanced by learned counsel for the petitioner and submits that sons are religiously, morally and legally bound to maintain their parents, particularly when the parent is left without means. He adds that the petitioner, despite having sufficient resources, has neglected the plaintiff who is compelled to pursue litigation for fulfillment of her basic needs. It is thus submitted that the impugned orders reflect a correct and equitable exercise of jurisdiction aimed at protecting an ageing mother from destitution and no interference by this Court is warranted.

5. The learned amicus curiae assisted the Court by stating that the Family Courts Act, 1964 confers jurisdiction upon Family Courts to entertain disputes relating to maintenance simpliciter, and the term maintenance in Part-I of the Schedule to Section 5 is broad enough to encompass maintenance claims preferred by parents against children. While referring para 371 of the Principle of Muhammadan Law by D.F. Mulla, he explains that claim of maintenance by poor parents against their children in easy circumstances is maintainable under Islamic law.

6. After hearing learned counsel for the parties as well as the learned amicus curiae and upon perusal of the record, the primary issue that surfaces for determination is whether a mother or father can institute a suit for their own maintenance against their sons before the Family Court. The law governing jurisdiction of Family Courts is the Family Courts Act, 1964 (hereinafter referred to as the Act of 1964 ). Reference may first be made to the Preamble of the Act, which reflects its objective to ensure expeditious settlement and disposal of disputes relating to marriage, family affairs and matters connected therewith. For convenience, the Preamble is reproduced as under:- Preamble. WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith; A plain reading of the Preamble shows that Family Courts are established for effective and swift resolution of disputes concerning: (i) Marriage (ii) Family affairs (iii) Matters connected therewith. Section 5 of the Act of 1964 deals with jurisdiction of Family Courts, relevant subsection whereof reads:

5. Jurisdiction. (1) Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule. (2) - - - (3) - - - - A bare perusal of subsection (1) ibid reveals that jurisdiction of the Family Court extends to matters enumerated in Part-I of the Schedule. For convenience, Part-I of the Schedule is reproduced hereunder: SCHEDULE [see section 5] [Part I]

1. Dissolution of marriage [including khula]

2. Dower.

3. Maintenance.

4. Restitution of conjugal rights.

5. Custody of children [and the visitation rights of parents to meet them].

6. Guardianship. 6A. Matters pertaining to return of child under the Hague Convention on the Civil Aspects of International Child Abduction, 1980.] 5

7. Jactitation of marriage.

8. Dowry.

9. Personal property and belongings of a wife and a child living with his mother.

10. Any other matter arising out of the Nikahnama.] The interpretation of Serial No.3, which simply states Maintenance, is vital. It is a well-established rule of construction that the legislature is never presumed to be short of words. If the legislative intent had been to restrict the Family Court's jurisdiction solely to the maintenance of wife or child, it would have explicitly written Maintenance of wife and child at serial No.3 as it has adopted such specific, restrictive language at serial No.9 of the schedule ibid as well as in section 17-A of the Act of 1964. The deliberate omission of any qualifying or restrictive language in Serial No.3 of the Schedule is, therefore, highly relevant and manifest of the legislative intention that the entry should not be confined. The purpose of the Act of 1964, as is evident from its scheme and structure, is to provide a specialized forum for the expeditious settlement of disputes relating to marriage, family affairs, and matters connected therewith. A claim of maintenance by dependent parents against their sons, being a family dispute rooted in familial obligations, squarely falls within the domain of family affairs and is therefore well within the jurisdiction of the Family Court. To read Entry No.3 as confined only to wife and child would be to read into the statute a restriction that the legislature consciously omitted.

7. As statutory provisions do not expressly define the nature of relationship between the person claiming maintenance and the party against whom maintenance is sought, principles of Islamic Law which are the primary source governing family relations, must be applied. Under Islamic jurisprudence, the obligation of sons to maintain their dependent parents squarely falls within the scope of maintenance. Support for this position can be found in para 371 of the Principles of Muhammadan Law by D.F. Mulla, which categorically affirms the responsibility of children to maintain their indigent parents. For ease of reference, para 371 is reproduced below:-

371. Maintenance of parents. (1) Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves. (2) A son though in straitened circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm. (3) A son, who, though poor, is earning something, is bound to support his poor father who earns nothing. It is also a well-recognized principle that Family Courts possess jurisdiction to decide all ancillary issues necessary for complete and effective adjudication of disputes within their domain. The Schedule is inclusive and must be interpreted purposively to advance the true spirit and objective of the statute. Consequently, this Court has no hesitation in holding that a mother or father, if left dependent and without means, can competently invoke jurisdiction of the Family Court to seek maintenance from their sons.

8. Having held that a mother, if left dependent and without sufficient means, may competently invoke the jurisdiction of the Family Court to seek maintenance from her sons, the Court now turns to examine the legality of the impugned orders. For proper appreciation, Section 17-A of the Act of 1964 is reproduced as under:- 17A. Suit for maintenance. (1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. (2) - - - (3) - - - (4) - - - The plain reading of Section 17-A ibid demonstrates that the legislature crafted a special and expedited mechanism to safeguard the rights of wives and children. The provision is summary in nature, time-bound in its operation, and is supported by the serious penal consequence of striking off the defence. As this provision is expressly restricted by the Legislature to the maintenance of a wife or a child, it cannot be extended by necessary implication to encompass the suit for maintenance filed by a mother against her sons. The specific inclusion of wife or a child indicates that the Legislature intended to reserve this stringent, summary power exclusively for those two categories. Since the provision visits a defendant with serious penal consequences, it must be construed strictly and applied only in cases that squarely fall within its narrow statutory contours. Therefore, Section 17-A is not attracted to the present dispute wherein a mother has sought maintenance from her sons. However, it is observed for clarity that the authority to pass a final decree for maintenance inherently includes the power to grant interim relief pendente lite as an ancillary or necessary measure to prevent destitution during litigation. Therefore, the Family Court is fully empowered to fix and direct the payment of interim maintenance during the pendency of a suit filed by any parent and enforce such judicial orders exercising its powers under section 21A of the Act of 1964 as well as inherent powers and every endeavor should be made to decide such cases within the period of six months prescribed in section 12A of the Act ibid. However, the critical distinction must be maintained that the special and stringent penal consequences such as the striking off of the defense and the resultant decreeing of the suit for failure to pay the interim amount as provided exclusively under Section 17A of the Act of 1964, cannot be pressed into service by the Family Court in a suit for maintenance filed by parents against their sons.

9. In the instance case, the Judge Family Court directed the defendants, through order dated 20.05.2025, to pay interim maintenance by the 14th day of each month. However, coercive measures were initiated on the 3rd day of the following month, even before the expiry of the prescribed period. This precipitate action reflects a clear misapprehension of the jurisdiction vested under Section 17-A ibid and amounts to denial of due process. The Additional District Judge also failed to appreciate this legal infirmity and erroneously affirmed the order dated 03.06.2025, thereby perpetuating the defect.

10. It would not be out of place to observe that learned counsel for the petitioner, during the course of arguments, also raised an objection to the maintainability of the suit before the Family Court on the ground that it constitutes a second suit between the parties. However, such objection had not been pressed through any specific prayer in the present writ petition. Any adjudication on such factual controversy at this stage may effectively result in this Court assuming the role of a court of first instance, thereby prejudicing the right of appeal of the party who may feel aggrieved by such determination. Thus, findings on the above factual objection are deliberately eschewed and the matter is left open to be examined and decided by the Judge Family Court in accordance with law.

11. Since the question as to whether a mother can maintain a suit for her maintenance against her sons before the Family Court involves interpretation of statutory provisions and such issue being purely of legal in nature is likely to recur in other cases concerning dependent parents seeking enforcement of their right to maintenance, therefore, to prevent uncertainty and conflicting views across different fora, this Court has considered it appropriate to conclusively determine the said legal question.

12. For the foregoing reasons, instant petition is allowed. Consequently, the impugned judgment and decree dated 03.09.2025 passed by the Additional District Judge, as well as the order and decree dated 03.06.2025 passed by the Judge Family Court, along with all proceedings taken in pursuance thereof, are hereby set aside. The matter is remanded to the Judge Family Court where the suit shall be deemed to be pending, which shall be decided afresh strictly in accordance with law. The Judge Family Court shall endeavour to conclude the matter expeditiously. Office is directed to transmit a copy of this judgment to the Judge Family Court, Lahore, forthwith. UN/A-86/L Petition allowed.