2019 PLP 511 (CLC)

SHAKIL-UR-REHMAN KHAN, J.

The relevant facts for the decision of the instant petition are that Naveed Ahmed, petitioner was married to Mst. Mehwish Riaz, respondent No.1 on 10-02-2017 and minor Abdullah, respondent No.2 was born on 16-11-2017. Unfortunately, the petitioner divorced her on 11-5-2018 and she filed a suit for recovery of dowry articles, gold ornaments and maintenance allowance at the rate of Rs.20,000/- for herself as well as for their minor son as well as recovery of Rs.5,00,000/- as per column No.19 of the Nikahnama. The petitioner filed a contesting written statement. Thereafter, as many as eight (8) issues were framed vide order dated 10-10-2018 and the learned Judge, Family Court also fixed the ad-interim maintenance allowance for respondents Nos. 1 and 2 at the rate of Rs.3,500/- per month for each. This order has been challenged to the extent of granting interim maintenance allowance to respondent No.1, by the petitioner through the instant constitutional petition.

2. Learned counsel for the petitioner argued that the petitioner is ready to pay the interim maintenance for minor Abdullah who is a suckling baby, however, respondent No. 1 is not entitled for any such relief being a divorcee. He points out that it is the case of the lady, that Talaq was pronounced on 11.05.2018 and Talaq Nama was sent to her. He further argued that it is a matter of evidence that whether Abdullah, the minor son is being breast fed or not. However, he admits that this particular ground has not been taken in the instant writ petition but he hastened to add that this particular fact has not even been mentioned in the plaint filed by his ex-wife / respondent No.1. He has also relied upon Ayat No.233 of Surah Al-Baqra from the Holy Qur'an.

3. Heard. Record perused.

4. I have gone through the pleadings of the parties as filed before learned Family Court as well as the instant writ petition. Learned counsel for the petitioner is correct in pointing out that the plaint does not state anything about minor Abdullah to the effect that he is a suckling baby. However, in ground (c) of the instant petition, it has been stated as follows:- "c. That the respondent No.2 is a suckling baby and the learned trial court awarded interim maintenance for him @ Rs.3500/- and the petitioner is ready to pay the interim maintenance as per order of the Honourable Court, however the respondent No.1 is not entitled for any such relief being divorcee lady." In any case, the learned Family Court in para No.2 of the impugned order dated 10.10.2018 has held as follows:- "

2. Admittedly, plaintiff No. 2 is issue of the parties who is in custody of plaintiff No.

1. Father is duty bound to provide maintenance allowance to his children, therefore the interim maintenance allowance @ Rs.3500/- per month for plaintiff No. 2 is fixed till the disposal of suit in hand whereas admittedly the minor is below the age of two year who is in custody of plaintiff No. 1, meaning thereby plaintiff No. 2 is a suckling baby therefore plaintiff No. 1 is also entitled for interim maintenance allowance @ Rs.3500/- per month till the minor reaches the age about two years or the disposal of suit in hand which-ever is earlier. Interim maintenance allowance shall be paid by defendant on or before 14th of each month in case of any failure proceeding under section 17-A shall be initiated against him. Interim maintenance allowance shall be payable from the first date of appearance of defendant in the suit." In view of the above, it needs to be noted that the petitioner himself refers to his minor child Abdullah as "a suckling baby", as such, in these circumstances the principle of approbate and reprobate is fully applicable in the case of the petitioner and the petitioner cannot blow hot and cold in the same breath. Reliance is placed on the cases reported as A.R. Khan v. P.N. Boga through LR (PLD 1987 SC 107), Messrs Home Comforts v. Mirza Rashid Baig and others (1992 SCMR 1290), Federation of Pakistan v. Amir Hamza (2001 SCMR 1959), Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708) and Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another (2007 SCMR 569). The above noted para from the impugned order shows that the learned Judge, Family Court completely understanding the wisdom and intention of the legislature in promulgating the Family Courts Act, 1964 exercised parental jurisdiction, while passing the impugned order dated 10-10-2018. Learned Family Court is a quasi-judicial forum and the impugned order is well within the four corners of the law.

5. Almighty Allah through various verses of the Holy Qur'an has laid down the basic rules on which the rights of the child are based, in the above-noted circumstances. The English translation as well as commentary of Ayat No.233 of Surah Baqara by Mr. Abdullah Yusuf Ali in Volume-I (Two-Volume Edition - 1977) at page 93 is reproduced as follows:- Translation: "The mothers shall give suck to their offspring for two whole years, if the father desires, to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child, nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning, by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster-mother for your offspring, there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms. But fear Allah and know that Allah sees well what ye do." Commentary: "As this comes in the midst of the regulations on divorce, it applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of the divorce, probably be on good terms, and the interests of the children must be safeguarded. As, however, the wording is perfectly general, it has been held that the principle applies equally to the father and mother in wedlock : each must fulfill his or her part in the fostering of the child. On the other hand, it is provided that the child shall not be used as an excuse for driving a hard bargain on either side. By mutual consent they can agree to some course that is reasonable and equitable, both as regards the period before weaning (the maximum being two years) and the engagement of a wet-nurse or (by analogy) for artificial feeding. But the mother's privileges must not be curtailed simply because by mutual consent she does not nurse the baby. In a matter of this kind the ultimate appeal must be to godliness, for all legal remedies are imperfect and may be misused." The English translation as well as commentary of Ayat No.6 of Surah Talaq by Mr. Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 (Three-Volume Edition - 1969) is reproduced as follows:- Translation: "Let the women live (In 'iddat,) in the same style as ye live, according to your means : Annoy them not, so as to restrict them.5516 And if they carry (life in their wombs), then 5517 spend (your substance) on them until they deliver their burden : and if they suckle your (offspring), give them their recompense : and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves5518 in difficulties, let another woman suckle (the child) on the (father's) behalf.5519" Commentary: "5517. If there is pregnancy, a sacred third life comes on the scene, for which there is added responsibility (perhaps added hope of reconciliation) for both parents. In any case no separation is possible until after the child is born. Even after birth, if no reconciliation between parents is possible, yet for the nursing of the child and for its welfare the care of the mother remains the duty of the father, and there must be mutual counsel between him and the mother in all truth and sincerity. 5518. "If ye find yourselves in difficulties": e.g., if the mother's milk fails, or if her health fails, or if any circumstance arises which bars the natural course of the mother nursing her own child. There may be psychological difficulties also. 5519. That is, the father must stand all expenses, without cutting down the reasonable allowance to which the mother is entitled in the circumstances." The above clearly shows that even the foster mother is to be paid for her services. The right of such a child is so intertwined with the mother that it is imperative for the mother to be duly supported, provided for and properly looked after for the period she feeds the child. Keeping in view the above and the jurisprudence on the subject, the concepts of Razayat and Hazanat are well established. Every child has following rights over its parents:- a) Right of Razayat or being suckled; b) Right of fosterage and being brought up; and c) Right of being trained and educated. It may not be out of place to mention here that a special law for such children and for protection of breast feeding has been promulgated, titled as the Protection of Breast-Feeding and Child Nutrition Ordinance, 2002. Modern science also recognizes that mother's milk is the best food for the baby. In this view of the matter the impugned order dated 10-10-2018, the learned Family Court has rightly included the interim maintenance for the divorced mother of the minor. Reliance in this regard can safely be placed on the cases reported as Muhammad Aslam v. Muhammad Usman and others (2004 CLC 473), Captain S.M. Aslam v. Mst. Rubi Akhtar (1996 CLC 1) and Muhammad Ameen v. Mst. Mehar un Nisa and others (PLD 1988 Federal Shariat Court 100).

6. It also needs to be noted that the impugned order has been passed under the provisions of Section 17-A of the said Act which provides for the interim maintenance. Moreover, subsection (3) of the section 14 of the said Act provides as follows:- "

14. Appeals. - (3) No appeal or revision shall lie against an interim order passed by a Family Court." In view of these statutory provisions and the below noted precedents, it is clear that the impugned order dated 10-10-2018 is only tentative in nature and the amount of maintenance will finally be decided after recording of evidence, therefore, it is not liable to be interfered with at this stage, while exercising constitutional jurisdiction. Reliance can be placed in this regard on cases reported as Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165), Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365) and Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128) and Mst. Tahira and 4 others v. Muhammad Irfan and another (2018 MLD 407).

7. For what has been stated above, the instant writ petition being without any merits stands dismissed in limine.

8. Office is directed to send a copy of this order to respondent No.1 for information. MH/N-3/L Petition dismissed.