2004 PLP 616 (YLR)

Muhammadan Law by Mulla, S.370 fol. Qazi Khurshid Alam for Petitioner. Precise facts in the instant writ petition are that suit for recovery of maintenance allowance was filed against the paternal-grandfather-present-petitioner by respondents Nos.1 and 2-Jawaria Aslam and Nadia Aslam minor daughters and for maintenance allowance of widow. This suit was resisted and the learned Judge Family Court after recording evidence vide judgment and decree dated 3-12-2602 dismissed the claim of Mst. Shehnaz Bibi and respondents Nos.1 and

2. All the respondents being aggrieved filed an appeal against the impugned judgment and decree, which was disposed of vide judgment and decree dated 22-5-2003, claim of maintenance allowance in respect of Mst. Shehnaz Bibi was disallowed and the respondents Nos.1 and 2 were allowed maintenance allowance at the rate of Rs.2,000 per month w.e.f. the date of institution of the suit. This judgment and decree is impugned in the instant writ petition.

2. Arguments advanced by learned counsel for the petitioner are that the learned Appellate Court has not taken into consideration the material evidence on record, which clearly shows that the petitioner was bound to maintain respondents Nos. l and 2 as she was in easy circumstances being in possession of all property left by her husband at the time of his death and an amount of Rs.50,000 was given by the petitioner to her to deposit in the bank on behalf, of respondents Nos.1 and 2.

3. I have heard the learned counsel for the petitioner and perused the record. It is an admitted fact that the petitioner is a man of means as he is owner of 100 Kanals of land vide Jamabandi for the year 1996-97. Now the argument advanced by learned counsel for the petitioner is that children are in easy circumstances and the grandfather is not bound to maintain them. Section 370 of Muhammadan reproduced below:-- "Maintenance of children and grandchildren.

(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be. (3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather provided he is in easy circumstances." According to the provisions of section 370 of Muhammadan Law father or grandfather is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. In disregard to this fact that they are in custody of their mother.

4. P.W.1 Mst. Shehnaz Bibi stated in her examination-in-chief that after the death of her husband she started living with her father-in-law and 8/10 months prior to the filing of suit he took hold of all the animals, and her dowry articles and expelled her alongwith children from his house and all these dowry articles are with him and she is living in her parents' house and her parents are poor and cannot maintain the children while the petitioner is a well off person and his annual income is Rs.3,00,000/4,00,

000. He can easily maintain the children. In her cross-examination she stated that her husband had animals and she had her articles of dowry, wheat and Moongi but she denied that amount of stock is still payable by the agents and she also denied that she has taken all the "TARKA" of her husband and brought to her parents' house. She also denied that she received Rs.50,000 from the petitioner/defendant. D.W. 1 the petitioner appeared and stated in his examination-in-chief that he gave Rs.50,000 to the minors for deposit in bank, which was not deposited but in his cross-examination he admitted that he is owner of 21 acres of land, which is on lease and there is no property in the name of plaintiff or her daughters and he also admitted that he had not maintained the plaintiffs for 8/9/10 months. His second witness is D.W.2, who is the daughter-in -law of the present petitioner and sister of the plaintiff married on the same day. She supported D.W.1 but she admitted in her cross-examination that no receipt was taken for payment of Rs.50,000 and defendant's annual income is Rs.2,00,000/3,00,000.

5. The petitioner has miserably failed to bring on record any documentary or strong evidence to show that the respondents/plaintiffs are in easy circum-stances and not fit to be maintained by the grandfather while vice versa the evidence available on record shows that the petitioner is financially fit person as grandfather of the minors and he can easily maintain the minor granddaughters as he is bound by law to maintain the minors of his deceased son, who are also legal heirs in the property owned by him. Law does not leave the minors unprotected and left to be swayed in cruel circumstances when the grandfather is alive and possesses means to maintain the children of deceased son and no substantial evidence is on record to prove that orphan minors have means for their survival in present circumstances, therefore, the learned Appellate Court has rightly reversed the judgment and decree passed by the learned Judge Family Court. Learned counsel for the petitioner has failed to show legal infirmity in the judgment and decree passed by the learned Appellate Court, therefore, the instant writ petition is dismissed in limine. S.A.K./A-866/L Petition dismissed.