Father is not bound to maintain his child under one condition

PLJ 2013 Lahore 147

Present: Ali Baqar Najafi, J.

GAKHAR HUSSAIN--Petitioner

versus

Mst. SURAYYA BEGUM, etc.--Respondents

W.P. No. 2232 of 2012, decided on 10.12.2012.

Muhammadan Law--

----Ss. 367 & 370--Maintenance--Disobedient daughter--Entitlement to maintenance by father--Under S. 370, a father is bound to maintain his daughter until she is married and father is not bound to maintain a child which is capable of being maintained out of his or her own property.        [P. 149] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Maintenance--Father is bound to maintain even a divorced daughter if she is living with her mother instead of father--Validity--A daughter is entitled to receive maintenance regardless of her age till such time she is married--Even on her attaining age of majority the father is responsible for her maintenance as she would lead an independent life and is always in need of protection her parents.       [P. 150] B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Maintenance--Entitlement to maintenance by father--Mother of minor could not provide her maintenance due to limited sources--Validity--Father was admittedly living at U.K and notwithstanding his means of subsistence, he has been providing enough maintenance to other children from his other wives and as such he treated daughter with discrimination.   [P. 150] C

PLD 2005 SC 24, ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Maintenance--Disobedient daughter even assume for moment without conceding was entitled to maintenance by father--Daughter was entitled to maintenance by father--Validity--Contention--Disobedient daughter is not entitled to maintenance has no force for the reasons, (i) father was unable to show his love, affection or even intimacy for daughter and, therefore, cannot expect her to return, precisely when no instance was mentioned showing disobedience, (ii) that ever since he divorced his wife, he never turned up or saw face of his daughter, (iii) under Islamic law, there is no institution of abandonment (Aaq) for disgruntled son/daughter depriving her from inheritance and a daughter cannot be deprived of her right of maintenance by father during his life time.   [P. 150] D

PLD 2001 SC 31, PLD 2006 SC 457, PLD 2007 CLC 656, PLD 1972 SC 302, PLD 2012 Lah. 154 & PLD 2005 SC 24, ref.

Ch. Muhammad Waris Khan, Advocate for Petitioner.

Mr. Abid Hussain Abid, Advocate for Respondents.

Date of hearing: 10.12.2012.

Order

Through this writ petition, the petitioner challenges two orders dated 09.07.2012 passed by Respondent No. 3 and that of dated 08.02.2012 passed by Respondent No. 4.

2.  Brief facts giving rise to filing of this writ petition are that petitioner married Respondents No. 1 on 28.10.1981. Respondent No. 2 was born from their wedlock on 02.09.1983. The petitioner is foreign nationality holder and his earning exceeds Rs. 1 1/2 lac per month. He expelled the respondents in the year 1987 and married oneSaadia Bibi who was his third wife. The respondents claim maintenance to the tune of Rs. 25,000/- each besides other expenses including educational expenses of Respondent No. 2.

Conversely, the petitioner filed written statement on 29.06.2011 through his attorney controverting the claim of the respondents on the ground of limitation, estoppel, concealment of facts and that Respondent No. 2 his daughter is disobedient as she refused to marry with his nephew proposed by him. Hence this writ petition.

3.  Learned counsel for the petitioner submits that the impugned judgments and decrees are against law and facts; that Respondent No. 2 is an educated lady and is of earning hand and has been a school teacher whereas the petitioner is an ailing and sick old man depends upon his children and is at the mercy of the State in U.K.; that the grant of past maintenance for six years is not only harsh, excessive but also is illegal; that according to the Injunctions of Islam the children who were earning financially are bound to feed their sick parents to get the blessing of Allah Almighty; that Respondent No. 2 is earning her livelihood and asset of society, but unfortunately she is acting as a tool in the hands of his ex-wife who is exploiting his daughter/ Respondent No. 2. He gave reference to the statement of Respondent No. 2, frustrating his claim but no proof either documentary or oral was produced by Respondent No. 2 which could determine financial status of the father. Further submits that in Section 369 of the Mohammedan Law by D.F. Mullah's, Food, Raiment and lodging are defined for maintenance, as such the expenses for education are not covered. Places reliance on Mukhtarul Hassan Siddiqui versus Judge Family Court, Rawalpindi and 4 others (1994 CLC 1216(Lahore) in support of his argument that a disobedient daughter is not entitled to recover the maintenance; that the disobedient respondent being major should in-fact support the petitioner; that the maintenance for period of six years is not sustainable in the eyes of law.

4.  Conversely, learned counsel for the respondents submits that the petitioner has married three ladies and is feeding and maintaining the children from other wives but Respondent No. 2 was not only discriminated but also ignored totally; that she with a great difficulty could sustain and set up at the level of MA. (English Literature); that a disobedient daughter, even assume for a moment without conceding, is also entitled to the maintenance by the father; that Respondent No. 2 is also entitled to maintenance by the father; that the petitioner has abandoned the said respondent, however, since he divorced her mother and did not even bother to know as to whether they were surviving or dead. Places reliance on Article 120 of the Limitation Act, 1908; Abdul Rauf and others versus Mrs. Shereen Hassan (PLD 2001 Supreme Court 31), Muhammad Nawaz versus Mst. Khurshid Begum and others (PLD 1972 Supreme Court 302), Mst. Anar Mamana and another versusMisal Gul and 2 others (PLD 2005 Peshawar 194), Farkhanda Mumtaz versus Muhammad Sharif and 2 others (PLD 2006 Peshawar 96) & (PLJ 2006 Peshawar 206(DB), Mst. Farah Naz versus Judge Family Court, Sahiwal (PLD 2006 Supreme Court 457); Rasheed Ahmad versus Mst. Shamshad Begum and 3 others (PLD 2007 CLC 656) Arbah Mir Muhammad versus Mst. Iram Iltimas (PLD 2005 Supreme Court 24) and Muhammad Asadx versus Mst. Humera Naz and others (2000 CLC 1725 (Lahore), to argue that the respondent is legally entitled to the maintenance until she gets married or her custody is changed through process of law, which the petitioner has been avoiding.

5.  I have heard the learned counsel for the parties and perused the record.

6.  Under Chapter XIX of the Muhammadan Law by D.F. Mulla's, the authentic codified text (though a personal opinion) so far available, the maintenance as defined in Section 369 includes food, raiment and lodging. Under Section 370 a father is bound to maintain his daughter until she is married and the father is not bound to maintain a child which is capable of being maintained out of his or her own property. The definition of maintenance is to be liberally interpreted which includes the process of maintaining or being maintained and the provisions of the means to support life as held in Abdul Rauf versus Mrs. Shereen Hassan (PLD 2001 Supreme Court 31). The claim for past maintenance is governed by Art. 120 of the Limitation Act which describes a period of six years from the date when the right to sue is accrued. The time during which the petitioner remained away from Pakistan would be excluded for reckoning the period of limitation as held in Mst. Farah Naz versus Judge Family Court Sahiwal (PLD 2006 Supreme Court 457). The said respondent is also entitled to past maintenance, six years prior to institution of the suit as already said that Article 120 of the Limitation Act is applicable to the suit for maintenance. Reliance can be placed on Rasheed Ahmad versus Mst. Shamshad Begum and 3 others (PLD 2007 CLC 656) and also Muhammad Nawaz versus Mst. Khurshid Begum and 3 others (PLD 1972 Supreme Court 302) wherein the past maintenance subject to limitation was held to be permissible in relevant circumstances of the case. Even in the recent judgment given by learned single bench of this Court in case Mian Muhammad Sabir versus Mst. Uzma Parveen and 2 others (PLD 2012 Lahore 154) it was held that father is bound to maintain even a divorced daughter if she is living with her mother instead of the father. Hence, by now, it can be safely said that a daughter is entitled to receive the maintenance regardless of her age till such time she is married. Even on her attaining age of majority the father is responsible for her maintenance as she would lead an independent life and is always in need of protection of her parents. In the instant case the mother of Respondent No. 2 could not provide her maintenance due to limited resources. The father is admittedly living at U.K., and, notwithstanding his means of subsistence, he has been providing enough maintenance to the other children from his other wives and as such he treated Respondent No. 2 with discrimination. Reliance can be placed on Arbab Mir Muhammad versus Mst. Iram Iltimas (PLD 2005 Supreme Court 24).

7.  The contention of the petitioner that disobedient-daughter is not entitled to maintenance has no force for the reasons; firstly, the father was unable to show his love, affection or even intimacy for the daughter and, therefore, cannot expect her to return, precisely when no instance was mentioned showing disobedience; secondly, that ever since he divorced his wife (mother) Respondent No. 1 he never turned up or saw the face of his daughter; thirdly, under Islamic Law there is no institution of abandonment (Aaq) for a disgruntled son/daughter depriving him/her from the inheritance and, therefore, a daughter cannot be deprived of her right of maintenance by the father during his life time. Even otherwise, the concurrent finding of facts cannot be interfered as the learned counse