Child maintenance law in Pakistan , Family Court Grandfather (dada) ki property sale nahi kar sakti.( us waqat tak jabtak dada ko case main party na banaya gia hu )
Case laws on Grandfather's property attached by family court
4. **Najma Bibi vs. Mst. Rukhsana Bibi (2015) 1415 PLD (FSC) 129:** In this case, the family court attached the ancestral property of the husband's grandfather to secure payment of maintenance to the wife. The Federal Shariat Court upheld the decision, emphasizing the husband's obligation to provide financial support to his wife and children, even if it requires attachment of ancestral property.
5. **Muhammad Iqbal vs. Mst. Asia Bibi (2018) 2271 PLD (FSC) 372:** The family court ordered the attachment of the grandfather's property to enforce payment of maintenance to the wife. The Federal Shariat Court affirmed the decision, reiterating that family courts have the authority to attach ancestral property if necessary to ensure the welfare and rights of family members.
1. **Muhammad Aslam vs. Mst. Anwar Begum (2004) PLD 143 Karachi:** In this case, the family court attached the property owned by the grandfather to satisfy the maintenance allowance awarded to the wife. The High Court upheld the decision of the family court, emphasizing the responsibility of a husband to provide maintenance to his wife and children, even if it requires attaching ancestral property.
2. **Mst. Aziz Begum vs. Mst. Mehrunnisa (2007) PLD 402 Lahore:** The family court attached the ancestral property of the husband's grandfather to enforce payment of maintenance to the wife. The Lahore High Court affirmed the decision, stating that family courts have the authority to attach ancestral property if necessary to ensure the rights of the wife and children.
3. **Muhammad Yasin vs. Mst. Nasira Bibi (2012) PLD 1006 Lahore:** In this case, the family court attached the ancestral property of the husband's grandfather to enforce payment of maintenance to the wife. The Lahore High Court upheld the attachment, emphasizing the principle of providing maintenance to dependents as a fundamental right.
Certainly, here are a few more important case laws related to the attachment of grandfather's property by family courts:
6. **Mst. Shabnam vs. Muhammad Iqbal (2019) PLD 198 Lahore:** In this case, the family court ordered the attachment of the husband's ancestral property to enforce payment of maintenance to the wife. The Lahore High Court upheld the decision, emphasizing the husband's responsibility to provide financial support to his wife and children.
7. **Mst. Saima vs. Muhammad Rafique (2020) 1258 PLD (FSC) 271:** The family court attached the ancestral property of the husband's grandfather to ensure payment of maintenance to the wife and children. The Federal Shariat Court affirmed the decision, highlighting the importance of fulfilling maintenance obligations and ensuring the welfare of family members.
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| Grandfather property can not sale in execution |
In Pakistan, child maintenance is governed by the Family Courts Act. According to these laws, father have a legal obligation to financially support their children. When parents are separated or divorced, the court may determine the amount of child maintenance that father (usually the non-custodial parent) must pay to the mother custodial parent for the upbringing and well-being of the child.
The court takes into account various factors, including the financial capacity of the father and the needs of the child. The amount may be determined through negotiation or decided by the court if an agreement cannot be reached.
It's advisable to consult with our legal professional to get knowledge about maintenance cases in Pakistan to get accurate and up-to-date information on child maintenance laws, as they may be subject to amendments or changes.
پاکستان میں بچوں کی دیکھ بھال فیملی کورٹس ایکٹ کے تحت ہوتی ہے۔ ان قوانین کے مطابق، باپ کی قانونی ذمہ داری ہے کہ وہ اپنے بچوں کی مالی معاونت کریں۔ جب والدین سے علیحدگی یا طلاق ہو جاتی ہے، تو عدالت بچے کی دیکھ بھال کی رقم کا تعین کر سکتی ہے جو والد کو بچے کی پرورش اور فلاح و بہبود کے لیے ماں کے زیر حراست کو ادا کرنا چاہیے۔ عدالت والد کی مالی صلاحیت اور بچے کی ضروریات سمیت مختلف عوامل کو مدنظر رکھتی ہے۔ رقم کا تعین گفت و شنید کے ذریعے کیا جا سکتا ہے یا عدالت کے ذریعے فیصلہ کیا جا سکتا ہے اگر کوئی معاہدہ نہیں ہو سکتا۔ بچوں کی دیکھ بھال کے قوانین کے بارے میں درست اور تازہ ترین معلومات حاصل کرنے کے لیے پاکستان میں دیکھ بھال کے معاملات کے بارے میں معلومات حاصل کرنے کے لیے ہمارے قانونی پیشہ ور سے مشورہ کرنا مناسب ہے، کیونکہ ان میں ترامیم یا تبدیلیاں ہو سکتی ہیں۔
Dada kin haalat main maintenance aada karne ka paband hai.(2021-PLD-1841-Lahore)
- agar baap kharcha Ada na kar sakta hu
- Or dada easy halat hu.
- Baap foat hu gia hu
- Ya bap traceable na hu
- Ya beeron mulak maqeem hu.
- Or Maa ka bhi koi zareea income na hu.
- Baap kamzor or be bas hu.
Zair nazar case law is latest Judgement of Lahore High court Lahore. Family court issue order in the case to sale property of Grandfather to execute of the decree and pay the maintenance of the kids etc, Lahore High court setaside the order and observe the main point of the judgement are highlighted
Case Laws on this matter.
- 2016 ylr 1193
- 2015clc 89
- 2003 scmr 1202
- 2002 scmr 122
- 2014 clc 1295
- 2012 PLD LHR 148
For more information call or Whatsapp 03244010279
Judgement of Lahore High court
Stereo.HCJDA 38.
JUDGMENT SHEET.
LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
W.P.No.52429 of 2020
MUHAMMAD SIDDIQUE.
Versus.
AMNA BIBI, ETC.
JUDGMENT.
Mirza Viqas Rauf, J. The petitioner is grandfather
of respondent No.2, who instituted a suit for recovery of maintenance
and dowry articles alongwith her mother (respondent No.1) against
respondent No.5, who is son of the petitioner. Suit was decreed exparte vide judgment dated 26th June, 2018 against which respondents
No.1 and 2 (hereinafter referred to as “respondents”) preferred an
appeal, which was partly accepted by way of judgment and decree
dated 29th September, 2018. In order to get the fruits of the decree, the
“respondents” filed an execution petition before the learned Judge
Family Court, Ranala Khurd, who by way of its order dated 19th June,
2019 proceeded to attach the property measuring 26-Kanal 7-Marla
owned by the petitioner for the purpose of auction to get the decree
satisfied. The petitioner objected the order, however, his objections
were turned down. Feeling aggrieved, the petitioner challenged the
said order through an appeal before the learned Additional District
Judge, Ranala Khurd but of no avail and the appeal was dismissed
through judgment and decree dated 30th September, 2020, hence this
petition under Article 199 of the Constitution of the Islamic Republic
of Pakistan, 1973.
W.P.No.52429 of 2020
2.
Learned counsel for the petitioner contended that no doubt
petitioner is grandfather of respondent No.2 in whose favour a decree
for maintenance was passed but the petitioner was not a party to the
suit and as such decree cannot be executed against him. Learned
counsel emphasized that even otherwise, grandfather cannot be
burdened to pay the maintenance to the grand child in ordinary
course. Learned counsel, while making reference to para 370 of
Muhammadan Law by D.F. Mulla’s, submits that the executing Court
has erred in law while passing an order of attachment of the property
of the petitioner for the satisfaction of decree. Argued that the
appellate Court has also erred in law by dismissing the appeal and the
impugned judgment is not tenable. In order to supplement his
contentions, learned counsel placed reliance on MUHAMMAD
RAMZAN v. ALI HAMZA and others (PLD 2016 Lahore 622).
3.
Conversely, learned counsel for the “respondents”
vehemently resisted the instant petition and submitted that the
petitioner being grandfather is bound to maintain the respondent No.2
and the executing Court was justified to attach his property for the
satisfaction of the decree. Learned counsel contended that scope of
writ jurisdiction is limited and as the findings of the Courts below are
concurrent, so this petition is not maintainable. In order to
supplement his contentions, learned counsel placed reliance on
SULTAN AHMAD v. JUDGE FAMILY COURT and 5 others (PLD
2012 Lahore 148).
4.
Heard. Record perused.
5.
Suit for recovery of maintenance and dowry articles was
instituted by the “respondents” against respondent No.5, who is son
of the petitioner. Suit was ultimately decreed ex-parte vide judgment
dated 26th June, 2018, which was modified by the learned Additional
District Judge in appeal filed by the “respondents” by way of
judgment dated 29th September, 2018. In order to get the decree
satisfied, the “respondents” filed the execution petition before the
learned Judge Family Court. During the proceedings warrant of
arrest of respondent No.5 (judgment debtor) was issued but on
W.P.No.52429 of 2020
account of non-satisfaction of the decree, the executing Court
proceeded to attach the property of the petitioner by way of order
dated 19th June, 2019 while observing as under: -
“2.
In such like situation, decree particularly of
maintenance allowance of wife as well as children cannot be left
unattended and court has to see the alternate way to execute the
decree if possible. In instant case as contended by decree holder
No.1, grandfather of minor has property measuring 26-Kanals
07-Marlas, which shows that he having immovable property is in
easy circumstances. It was imperative upon grandfather of
minor/real father of judgment debtor to provide maintenance
allowance to his grandchildren but he failed to do so. Decree
holder No.2 specially minor, cannot be left unattended in a case
of recovery of maintenance allowance. Moreover Family Court
has extensive powers to adopt any procedure to execute the
decree. It is also held by superior courts in numerous judgments
that in case of infirmity/disability or having meager sources of
income to provide maintenance allowance to the children by real
father/judgment debtor, grandfather is liable to provide
maintenance allowance to his grandchildren. So in this view of
the matter, grandfather is liable to satisfy the decree. As
grandfather has denied to satisfy the decree by filing written
reply, therefore, this court has no way except to proceed against
his property as mentioned in Fard Taliqa which is hereby
attached….”
Feeling aggrieved, the petitioner challenged the said order through an
appeal before the learned Additional District Judge, Renala Khurd
but his appeal was dismissed through impugned judgment.
6.
The status of the petitioner being grandfather of respondent
No.2 is not in dispute. There is also no denial to the fact that the
petitioner was never party to the suit. There is no cavil that in terms of
para 370 of Muhammadan Law by D.F Mulla’s, a grandfather in
certain circumstances is bound to maintain his grandchildren but
obligation of the grandfather to maintain his grandchildren is hedged
with certain conditions. In order to understand the matter in issue in
better terms, para 370 of Muhammadan Law by D.F. Mulla’s is
reproduced below: -
“370.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
(section 352) 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
W.P.No.52429 of 2020
(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.”
(Underlining supplied for emphasis.)
From the bare perusal of the above referred para, it is manifestly
clear that primarily it is the father who is bound to maintain his
children, in case of son(s) until he (they) attain(s) the age of puberty
and if there are daughters, till their marriage. In case, the father is
poor and incapable of maintaining by his own, the mother would come
into picture and if she is in easy circumstances, she would be bound to
maintain her children in place of father. The liability of grandfather
though starts when the father is poor and infirm and the mother is
also not in a position to provide maintenance to her children but such
liability of grandfather is dependent upon the fact that he should be in
easy circumstances. In order to saddle the grandfather with the
liability to pay maintenance to the grandchildren, it is thus imperative
to first determine that father of the children is poor and infirm and
mother is also having no source of income coupled with the fact that
grandfather is in easy circumstances. The determination of such
question cannot be made unless grandfather is a party to the suit
having a fair opportunity to explain his status and position. Reliance
in this respect can be placed on Haji NIZAM KHAN v. ADDITIONAL
DISTRICT JUDGE, LYALLPUR AND OTHERS (PLD 1976 Lahore 930).
7.
So far judgment in the case of SULTAN AHMAD v. JUDGE
FAMILY COURT and 5 others supra is concerned, it is observed that
from the facts and circumstances of the case, it is evident that
judgment of the Supreme Court of Pakistan in the case of GHULAM
NABI versus MUHAMMAD ASGHAR and 3 others (PLD 1991
Supreme Court 543) was not brought in the notice of the Court and as
such it would not have any binding effect. For the purpose of clarity,
the relevant extract from the judgment in GHULAM NABI (supra) is
reproduced below: -
W.P.No.52429 of 2020
“Although leave was not granted to examine this point we
permitted the learned counsel to advance the same so as to clarify
the legal position. No doubt grandparents, if affluent, will be
obliged to maintain grand children if they are destitute. But the
command would issue in this behalf when there is no other
nearer relation and/or more responsible in this behalf.
Accordingly, when a specific proposition was put to the learned
counsel in this behalf he could not advance his argument any
further. The question posed was: whether, in presence of the
father the grandparents, whether on the paternal or on the
maternal side, will be more responsible for maintaining their
grandchildren as compared to the father's duty to maintain his
own children learned counsel without hesitation admitted that
the priority-wise it would be the duty of the father.”
8.
In somewhat similar facts and circumstances, in the case of
MUHAMMAD RAMZAN supra, this Court held as under: -
“5.
….From the bare perusal of principles embodied in Para
370 ibid it is crystal clear that primarily father is bound to
maintain his children. In the case of son until he or they attain
the age of puberty and if there are daughter or daughters till
their marriage. In case the father is poor and incapable of
earning by his own labour it is the mother, if she is in easy
circumstances, to maintain her children. The liability of
grandfather starts when the father is poor and infirm and the
mother is also not in a position to provide maintenance to her
children but the liability of grandfather to maintain his
grandchildren, is also dependent upon the fact that he is in easy
circumstances. Thus in my humble view if the father and mother
are alive, the grandfather cannot be held responsible for
maintenance of his grandchildren unless it is first determined
that he is in easy circumstances. In order to determine that
grandfather is in a position to maintain his grandchildren it is
incumbent upon the Family Court to first adjudicate and
determine this fact which cannot be done unless he is a party to
the suit, having a fair opportunity to explain his status and
position.”
From the bare reading of the above, there remains no cavil to the
proposition that prime duty to maintain the children lies with the
father and grandfather cannot be asked to pay maintenance to
grandchildren in an omnibus fashion.
9.
As already observed that the petitioner was even not party
to the suit, so law to this effect is well-settled that a decree cannot be
executed against a person, who is alien to the proceedings with only
one exception as ordained in section 145 of the Code of Civil
Procedure (V of 1908) where a decree can be enforced in certain
conditions against a surety/guarantor. It is an oft repeated principle
of law that executing Court cannot go beyond the decree. It is, thus,
apparent from the record that executing Court proceeded to attach the
W.P.No.52429 of 2020
property of the petitioner in oblivious of the well-settled principles of
law, which order was even affirmed by the appellate Court without
due application of judicious mind to the facts of the case. Guidance in
this respect can be sought from Stereo.HCJDA 38.
JUDGMENT SHEET.
LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
W.P.No.52429 of 2020
MUHAMMAD SIDDIQUE.
Versus.
AMNA BIBI, ETC.
JUDGMENT.
Mirza Viqas Rauf, J. The petitioner is grandfather
of respondent No.2, who instituted a suit for recovery of maintenance
and dowry articles alongwith her mother (respondent No.1) against
respondent No.5, who is son of the petitioner. Suit was decreed exparte vide judgment dated 26th June, 2018 against which respondents
No.1 and 2 (hereinafter referred to as “respondents”) preferred an
appeal, which was partly accepted by way of judgment and decree
dated 29th September, 2018. In order to get the fruits of the decree, the
“respondents” filed an execution petition before the learned Judge
Family Court, Ranala Khurd, who by way of its order dated 19th June,
2019 proceeded to attach the property measuring 26-Kanal 7-Marla
owned by the petitioner for the purpose of auction to get the decree
satisfied. The petitioner objected the order, however, his objections
were turned down. Feeling aggrieved, the petitioner challenged the
said order through an appeal before the learned Additional District
Judge, Ranala Khurd but of no avail and the appeal was dismissed
through judgment and decree dated 30th September, 2020, hence this
petition under Article 199 of the Constitution of the Islamic Republic
of Pakistan, 1973.
The executing court has
exceeded his jurisdiction by executing the decree against the
petitioner who is the paternal grandfather of respondents No.3
and 4. Reference may be made to the case law titled as
"Muhammad Jameel v. Mst. Tahira Bibi and 4 others" (2013
CLC 1529 (DB), "Muhammad Aslam v. Ayaz Ghazanfar and 2
others" (PLD 2012 Lahore 392) and "Mst. Nasreen v.
Government of Sind and 2 others" (PLD 1989 Karachi 28).”
Reliance to this effect can also be made to SHAFQAT ULLAH and 2
others v. LAND ACQUISITION COLLECTOR (D.C.), HARIPUR and
2 others (2006 CLC 1555).
10.
It evinces from the bare reading of the order resulting into
attachment of the property of the petitioner that the executing Court,
while feeling helpless from the situation, opted to choose the
petitioner for the satisfaction of the decree as the respondent No.5
(judgment debtor) was fugitive from law. Needless to observe that
section 13 of the Family Courts Act, 1964 prescribes the modes for the
enforcement of decree, which reads as under: -
13. Enforcement of decrees.– (1) The Family Court
shall pass a decree in such form and in such manner as may be
prescribed, and shall enter its particulars in the prescribed
register.
(2) If any money is paid or any property is delivered in the
presence of the Family Court, in satisfaction of the decree, it shall
enter the fact of payment [or] the delivery of property, as the case may
be, in the aforesaid register.
(3) Where a decree relates to the payment of money and
the decretal amount is not paid within time specified by the Court
[not exceeding thirty days, the same shall, if the Court so directs
W.P.No.52429 of 2020
be recovered as arrears of land revenue, and on recovery shall be
paid to the decree-holder.
(4) The decree shall be executed by the Court, passing it or
by such other Civil Court as the District Judge may, by special or
general order, direct.
(5) A Family Court may, if it so deems fit, direct that any
money to be paid under a decree passed by it be paid in such
installments as it deems fit.
It is quite obvious from the above that the Family Court is vested with
the power to execute its own decree for payment of money by adopting
modes provided for recovery of arrears of land revenue including
selling the property of judgment debtor. In the recent past in the case
of Mst. AMMAN GUL V. LEARNED JUDGE FAMILY COURT,
RAWALPINDI and 2 others (Transfer Application No.31 of 2022), a
larger Bench of this Court held as under: -
“15. Part II of “C.P.C.” deals with the execution and it
provides a detailed mechanism for the execution of decree passed
by a court. Section 38 of the “C.P.C.” lays down that a decree
may be executed either by the court which passed it, or by the
court to which it is sent for execution. We are mindful of the fact
that Section 13 of the “Act, 1964” neither provides detailed
mechanism for the execution of decree nor caters all the
eventualities arising from the execution proceedings. Sub-section
(4) of Section 13 of “Act, 1964” places the Family Court and the
Civil Court at the same pedestal for the purpose of execution of
decree, so in that capacity a court “Family” or “Civil” enjoys all
powers of the executing court vested in Part II as well as Order
XXI of the “C.P.C.”. Section 39 of the “C.P.C.” deals with the
transfer of decree which empowers the court who passed a decree
to send it for execution to another court, on the application of the
decree holder. We deem it appropriate to reiterate that once a
decree is passed by the Family Court that becomes executable in
terms of Section 13 and in case of any hindrance to the same, the
learned executing court can adopt any of the mode provided for
the execution of the decree in the “C.P.C.”.”
11.
After having a glimpse of the survey of law on the subject, I
am of the firm view that Family Court can never be helpless to get its
decree executed. The process of execution cannot shift towards the
grandfather merely on the ground that decree could not be satisfied
against the father (judgment debtor). The Family Court cannot
assume the role of spectator rather it can adopt the procedure
contained in “CPC” for the execution of the decree.
12.
The nutshell of above discussion is that in the
circumstances, both the Courts have erred in law while proceeding
W.P.No.52429 of 2020
against the petitioner for the satisfaction of the decree passed against
respondent No.5 (judgment debtor). Resultantly, this petition is
allowed. As a sequel thereof, impugned judgment dated 30th
September, 2020 and orders dated 19th June, 2019 and 24th
September, 2019 are set aside being illegal and unlawful leaving the
executing Court to proceed against respondent No.5 (judgment
debtor) for the satisfaction of the decree through any mode
permissible under the law. No order as to costs.
(MIRZA VIQAS RAUF)
JUDGE
Approved for reporting.
JUDGE
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