Maintenance

Family Court decreed the suit in favour of respondent/ex-wife to recover gold jewellery and fixed maintenance allowance at Rs.3000/- per month

Lower Appellate Court modified judgment and decree and did not find respondent/ex-wife entitled to recover gold jewellery

High Court in exercise of Constitutional jurisdiction enhanced quantum of maintenance allowance to Rs. 10,000/- per month and also found her entitled to recover gold jewellery

Validity

High Court referred to testimony of 14 witnesses in holding that respondent/ex-wife was kept in her parents' house without maintenance, and that this would entitle her to a higher quantum of maintenance than that granted to her by the Courts below

High Court was well within its rights to have partially set-aside judgment and decree of Lower Appellate Court but should have remanded the matter to Lower Appellate Court for a decision in the light of observations of High Court

Supreme Court set aside finding of High Court whereby it substituted its findings with those of Lower Appellate Court

Supreme Court maintained decision of High Court to issue a writ of certiorari with respect to judgment and decree passed by Lower Appellate Court and remanded the matter to Lower Appellate Court to decide the appeal (on the question whether respondent/ex-wife was entitled to recovery of 04 tolas of gold ornaments and a higher quantum of maintenance) in the light of observations made by High Court

Appeal was allowed.

Petitioner lady sought recovery of maintenance allowance against her grandfather and after his death she incorporated her uncle as defendant on the plea of poor distant relative

Trial Court decreed the suit against respondent / uncle in view of provision of S.337 of Muhammdan Law by D.F. Mullah

Lower Appellate Court set aside decree passed by Family Court

Validity

D.F. Mulla's Muhammadan Law was just a text book, which could be referred or relied upon by Courts like any other text book

It was neither a statute nor a custom or usage and opinion of author of the book was not binding

High Court declined to interfere in findings given by Lower Appellate Court as the same were factual and based on S.373 of Muhammdan Law, holding that conditions of the section of that text book were not met

Petitioner lady could not establish before Lower Appellate Court that she would get inheritance from the estate of respondent/uncle on his death

Lower Appellate Court also determined that petitioner lady could not prove herself to be poor distant relative

Reasons for claiming maintenance from grandfather in absence of father were on different premises whereas claim of maintenance from a relative under S. 373 of Muhammadan Law was under different principles of Islamic jurisprudence

If suit was filed to claim maintenance from grandfather after death of father, paternal uncle could not have been replaced as defendant in the shoes of grandfather

High Court declined to interfere in judgment and decree passed by Lower Appellate Court

Constitutional petition was dismissed, in circumstances.

It was incumbent upon petitioner / husband under S. 9 of Muslim Family Laws Ordinance, 1961, to provide maintenance to his wife during subsistence of marriage

It was undeniable right of a wife to be provided with maintenance, even if she was staying away from her husband due to just and valid reason

Suit filed by respondent / wife manifested that she did not come up with a prayer for dissolution of marriage which meant that she did not want to part ways with petitioner but intended to continue with the marriage but due to mistreatment and forcible ouster she had been living separately

Petitioner / husband was bound to provide maintenance to respondent / wife

High Court declined to interfere in concurrent findings of facts by both the Courts below who had properly evaluated the record and judgments rendered were based on correct appreciation of record/evidence

Constitutional petition was dismissed, in circumstances.

Word 'maintenance' was derived from Arabic word 'Nafaq' which means 'to spend' and in literal sense, the word 'nafaqah' means what a person spends on his family

It is an inclusive explanation of the concept, not exhaustive and is only indicative in nature

Other liabilities are also included within the sweep of the concept of maintenance i.e. medical expenses, education expenses etc.

Right of maintenance does not limit itself only to food, raiment and lodging but also entails all the other necessary expenses for the mental and physical wellbeing of the recipient

Maintenance paid by a father to his child is not a courtesy rather a religious, legal, moral and social duty which cannot be put aside on frail grounds, therefore, it would be absolutely safe to include marriage expenses also within the sweep of the concept of maintenance of an adult unmarried daughter

Responsibility of the Muslim father was to act as guardian of his unmarried daughter

Even when a woman has attained puberty/majority she needs the help and assistance of her father to formally enter matrimony

Father must function as guardian on her behalf in such marriage to enable his daughter into the contract of marriage

Paramount responsibility of the father as guardian at the time of marriage of his daughter must necessarily bring with it the corresponding obligation to ensure that all necessary expenses in connection with the marriage were met by him

Father has the indisputable obligation to maintain his unmarried daughter and he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly, as such the legal obligation to meet the reasonable marriage expenses of his daughter, is part of his obligation to pay maintenance to her

Admittedly, a father is bound to maintain his daughter till her marriage but such burden of 'maintenance'/monetary obligation cannot be shifted to a mother, who does not figure , anywhere in the compulsion to provide 'maintenance' to the children; this will not only financially burden the mother to bear the marriage expenses of her daughter but also will be against the legal norms.

Chairman, Arbitration Council while issuing a Certificate of Talaq fixed the maintenance allowance of the wife with arrears for the last three years

Petitioner assailed the order on the ground that the Family Court previously denied similar relief to the wife, therefore she was estopped from claiming the maintenance allowance

Validity

Section 9 of the Muslim Family Laws Ordinance, 1961, granted wife the right to seek maintenance for the future as well as the past

Combined reading of Ss. 5 & 21 of the Family Courts Act, 1964, revealed that there was no obstacle preventing the wife from applying under S. 9 of the Muslim Family Laws Ordinance, 1961, in addition to availing any other legal remedy available to her

When a party has more than one forum for redressal of its grievance and if it opts for one of them then it cannot be allowed to switch over to the rest of the remedies

In this particular case, if the proceedings before two forums were not maintainable, the suit before the Family Court, being filed later, could be challenged, but not the proceedings before the Arbitration Council

Constitutional petition was dismissed.

Subsection (2) of S. 9 of the Muslim Family Law Ordinance, 1961 clarifies that a husband or wife may in the prescribed manner within the prescribed period and on payment of prescribed fee prefer an application for revision of the certificate before the Collector concerned and his decision shall be final and shall not be called in question in any Court

Words "within the prescribed period" means not beyond the period stipulated under the Rules

In this regard clarification is made under R. 16(1) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.

Section 9(1) of the Ordinance, 1961, postulates that Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband

From the word 'maintenance' it cannot be gathered that it relates to past or future rather in a wide sense it covers all kinds of maintenance payable to the wife either during subsistence of her marriage or for Iddat period, as the case may be

Section 9(1) of the Ordinance, 1961 in no way curtails the power of Arbitration Council to grant past maintenance to the wife

Husband's obligation to maintain his wife commences simultaneously with the creation of marital bond and being an obligation and not an ex gratia grant it is enforceable even with respect to the past period of marital life, even if the same was not claimed during that period by the wife, subject to consideration of limitation and circumstances of the case itself.

Petitioner was aggrieved of judgment and decree passed by Trial Court directing petitioner to pay monthly maintenance allowance to the minors

Validity

It is the State who has to provide basic necessities of life such as food, clothing, housing, education and medical relief for all citizens, irrespective of their sex, caste, creed or race, who are permanently or temporarily unable to earn their livelihood on account of sickness or unemployment or circumstances beyond their control

State is to protect the family, mother and child and has to promote social and economic well-being of people

Government of Pakistan beside other departments established Pakistan Bait-ul-Mal for providing funds or assistance to destitute and needy widows, orphans, invalid, infirm and such other persons to save them from hardship, suffering and to enable them to lead a comfortable/honorable life in the society

High Court directed Pakistan Bait-ul-Mal to register respondent minors as regular beneficiaries from Pakistan Bait-ul-Mal and to pay Rupees 10,000/- to each minor on monthly basis without fail continuously till their marriage with increase of 10% annually, through their mother

Constitutional petition was allowed accordingly.

If wife would voluntarily leave the house of her husband, she was not entitled to maintenance charges.

In Islamic law, father is under legal, moral and religious obligation to maintain his children till the age specified by law/sharia

Such obligation originates from dictates of the Holy Quran.

Provision of S.17A(3) creates a new statutory right of automatic increase in the maintenance fixed by the Court in cases where annual increase has not been prescribed, it does not operate backwards

Fact that statutory prerequisites under S.17A(3) of the Family Courts Act, 1964 (i.e. fixation of maintenance by the Court and omission or failure of the Court to prescribe annual increase in the maintenance) may be drawn from a period prior to the enactment does not render application or operation of the said provision to be retrospective, particularly when the automatic annual increase in the maintenance takes effect from the date of enactment and not the period prior to that.

Subsection (3) of S.17A of the Family Courts Act, 1964 is a provision, the application whereof is conditional upon failure or omission of the Family Court to prescribe the annual increase while fixing the maintenance

Increase contemplated under the said provision is mandatory one and the Court is left with no discretion in that regard

Any increase under the said provision is co-extensive in duration with the entitlement for maintenance

Increase in maintenance under S.17A(3) of the Family Courts Act, 1964 is automatic in the sense that no decree is required to be passed and the same is recoverable by the executing court while enforcing the statutory obligation

Rate of annual increase in the maintenance has also been fixed by the legislature to be at ten percent each year and the base value (i.e. the maintenance fixed by the Court) to which such rate of increase applies remains constant throughout the period of application under S.17A(3) of the Family Courts Act, 1964.

To curb illegal practice of police officials regarding arrest and production of accused before Area Magistrate, High Court issued directions:

Detenu was recovered from police station and his arrest was not mentioned in Roznamcha (daily dairy) of the police station

Contention of authorities was that the detenu was arrested in investigation of a criminal case but no case dairy could be produced in support of such plea

Validity

Case diary was not personal property of investigating officer

On returning of investigating officer from investigation of case at police station, he under R. 25.54(3) of Police Rules, 1934, was to number and date each case diary mentioned at the back side of FIR available at police station in relevant FIR register

Station House Officer and investigating officer exceeded their powers and jurisdiction and committed gross misconduct which fell within the ambit of offence under S.155 (c) of Police Order, 2002

High Court directed police authorities to register FIR against the two officials

Constitutional petition was disposed of accordingly.

Father is duty bound to maintain his son until he attains the age of puberty and maintain his daughter till her marriage

Mere fact that the children are in custody of their mother is not a valid ground for the father to withhold maintenance of his children

So long as the children are with the mother and unless their custody is disturbed in result of any legal proceeding, liability of father to provide them adequate maintenance is absolute and is not dependent or affected by their residence.

Husband is bound to maintain his wife and children but right of maintenance of wife is subject to the condition that she must be faithful to the husband and obey his reasonable order, if she refuses to him, the husband is not bound to maintain her

Wife is not entitled to maintenance when she lives apart from the husband except for non-payment of her dower in which case her right of maintenance continues even though she is living apart from him.

Petitioner was father of minor who did not comply with the order passed by Family Court regarding payment of interim maintenance allowance

Family Court struck off the defence of petitioner and decreed the suit against petitioner

Judgment and decree passed by Family Court was maintained by Lower Appellate Court

Plea raised by petitioner father was that quantum of maintenance was to be based upon income and capacity of petitioner and not upon any other factor

Validity

Inadequacy of financial means of petitioner was duly rebutted by local commissioner's report, which was available on record before High Court and was also relied upon by the Family Court

Means of a person were to be factored in when apportionment of maintenance was taking place

Same was undertaken judiciously by Family Court while determining quantum of maintenance payable by petitioner

High Court in exercise of Constitutional jurisdiction declined to interfere in judgment passed by Lower Appellate Court as the same was in due consonance with law

Constitutional petition was dismissed in circumstances.

Father is bound to maintain his child regardless of his own financial position.

Daughter cannot be deprived of her right of maintenance by father during his life time when no instance is mentioned showing disobedience on her part

Father is obliged to maintain her daughter till her marriage

Liability of husband to maintain his wife continues till subsistence of marriage

After dissolution of marriage, female loses her marital status and liability again shifts towards her father.

Trial court, after hearing parties and record evidence, decreed the suit and fixed maintenance of plaintiff till her marriage

Father contended that plaintiff, being disobedient daughter who refused to reside with him, was not entitled for any maintenance

Daughter controverted said contention alleging that she had refused to reside with father due to maltreatment on the part of her step-mother/second wife of father

Validity

Father could not rebut said plea of mal-treatment and admitted to have unpleasant relations with daughter and that being father he was unable to show his love, affection or intimacy for his daughter and for that reason could not expect the same in return

Plea of father to disentitle daughter from maintenance on account of her alleged disobedience had no force

Father admitted to have served in Pakistan Rangers for thirty-five years and thereafter had been pensioner, had ancestral house with agricultural land and that plaintiff-daughter was in need of medical treatment

No illegality was committed by courts below in determining quantum of maintenance

Defendant being real father was legally and morally bound to maintain his divorced daughter

Daughter (as admitted by father) had no source of income and was being maintained by her paternal uncle

Plea of father that he was not bound to maintain daughter had no force

Constitutional petition was dismissed.

Quranic meanings and concepts of "nafaqah", "mata", "wa matee o hanna" and "fa anfiqo"; examined.

Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses

Validity

Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property

Definition of "maintenance" was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life

Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married

Even on attaining the age of majority, the father was responsible for daughter's maintenance

Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination

Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter, therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time

No interference was called for in the impugned orders

Constitutional petition was dismissed, in circumstances.

Mere age of majority itself is not sufficient to declare unmarried daughters disentitled to maintenance allowance, if otherwise it is not proved with cogent and sufficient evidence that daughters were living apart from father against his wishes and were not ready to obey his lawful and reasonable demands.

When matrimonial bond is intact between the parties, husband is bound under law to maintain his wife.

Petitioner assailed maintenance allowance by denying being father of minors and alleged that they were born to respondent from her previous husband

Validity

Plenty of evidence was available on file to show that petitioner and respondent kept on residing together and minors were born as a result of their cohabitation

Status of both the parties as husband and wife was proved and despite consistent claim of respondent that she was legally wedded wife of father of minors, the petitioner did not file any suit for jactitation of marriage to disprove her assertion

Minors were admittedly born during the lawful union of petitioner and respondent and petitioner had been paying them maintenance through money order during their stay in another city

High Court noted it with great concern that conduct of petitioner throughout the proceedings was contumacious rather shameful and he disowned paternity of his legitimate offsprings just to avoid payment of maintenance, which was his legal as well as moral obligation

Petitioner maliciously dragged respondents in litigation and humiliated them in society, therefore, High Court imposed special costs against him

High Court declined to interfere with maintenance imposed by the courts below

Petition was dismissed in circumstances.

Petitioner had already contracted marriage with four ladies and had been visiting abroad and after divorce to respondent had entered into another marriage

Maintenance allowance awarded to respondent by Family Court was enhanced by Lower Appellate Court to Rs.6,000 till effectiveness of Talaq, which was for 15 months

Validity

Evidence of petitioner was not believable that he was getting only Rs.7,000 as salary while maintaining two families

Rate of maintenance allowance enhanced in appeal by Lower Appellate Court was not beyond the means of petitioner or otherwise exorbitant

Bleak sources or means of income of husband or father was hardly a valid ground in the context of maintenance, so as to justify interference in findings recorded by courts of fact

Judgment and decree passed by Lower Appellate Court was in accordance with law and based on evidence

High Court, in exercise of constitutional jurisdiction, declined to interfere in judgment and decree passed by Lower Appellate Court

Petition was dismissed in circumstances.

Exceptional circumstances stated.

High Court in exercise of constitutional jurisdiction issued directions to Revenue Authorities for proper maintenance of revenue record.

Record supported wife's contention that during her deserted period, husband had not made any effort to rehabilitate her through any Court proceedings by filing a suit for restitution of conjugal rights

Husband was bound to-maintain wife, but had not paid her maintenance for such period

Wife was entitled to maintenance from husband

High Court set aside order of remand passed by Deputy Commissioner and directed husband to, pay maintenance to wife for such period.

Ex parte order was passed against father many times but his application for restoration was dismissed each time due to his absence

Father appeared to have tried his level best not to appear before the Court so that he might not have to deposit the amount of maintenance

Application of father, held, was rightly dismissed by Judge Family Court and High Court was correct in arriving at the conclusion that he was not entitled to invoke the discretionary jurisdiction by way of Constitutional petition.

Questions raised were whether maintenance for children had been awarded on the application of their mother, who had since been divorced after the grant of maintenance to her, if so whether, it was permissible; whether admitted payments by the petitioner to the respondent during default period had been taken into account and whether the amount of maintenance had been correctly determined

While the first two questions were settled in the Court with consent of the parties the third was found to involve question of fact which stood concluded in favour of petitioner and there being no challenge to it from respondent's side leave to appeal was refused.

Wife did not ask for a separate maintenance for her daughter but in the amount that she claimed for herself she referred to her added responsibilities in looking after the daughter as well

Family Court on remand allowed maintenance to wife as well as her daughter but Appellate Court set aside order of maintenance in respect of her daughter

Wife challenged the order of Appellate Court in Constitutional petition before High Court where the petition was disposed of in terms of compromise between the parties whereby it was agreed that the custody of the daughter should be awarded to husband petitioner provided he paid agreed amount by way of maintenance to the daughter for her education in a specified college

Order challenged in Supreme Court by husband-petitioner

Leave to appeal granted to consider questions whether decree could be operative only from date of institution of suit and not from date when wife started to live separately from husband and whether maintenance allowance fixed by trial Court was inclusive of pocket allowance.

Includes education but not education at higher level ad infinitum.

S. 488 read with West Pakistan Family Courts Act (XXXV of 1964), Ss. 5 & 20Maintenance-Magistrate's jurisdiction to deal with applications under S. 488-Ousted by West Pakistan Family Courts Act, 1964, Ss. 5 & 20. Section 5 read with section 20 of West Pakistan Family Courts Act, 1964 has ousted the jurisdiction of the Magistrates to deal with applications under section 488, Cr. P. C.

S. 9Maintenance-Section 9 not confined in application to grant of future maintenance only-Arbitration Council's jurisdiction extends to award of arrears of past maintenance as well.