Adult maintenance | sons can also take expenses. The Lahore High Court declared that the father is obliged to pay the expenses of the adult sons as well because the education of the adult sons is not completed. W P No.62571 of 2024.
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| Adult sons can also take expenses. The Lahore High Court declared that the father is obliged to pay the expenses of the adult sons as well because the education of the adult sons is not completed. W P No.62571 of 2024. |
اس مقدمے میں چند منفرد قانونی اور اسلامی نکات سامنے آئے ہیں:
1. تعلیمی اخراجات کی ذمہ داری: عدالت نے اسلامی قانون کی تشریح کرتے ہوئے واضح کیا کہ بالغ بیٹوں کے تعلیمی اخراجات اس وقت تک والد کے ذمے رہتے ہیں جب تک وہ اپنی تعلیم مکمل کر کے خود کفیل نہ ہو جائیں۔ اس فیصلے میں "تعلیم" کو "نان و نفقہ" میں شامل کیا گیا ہے، اور یہ ضروری قرار دیا گیا کہ بچے کو وہ تعلیم حاصل ہو جو اسے خود کفیل بنائے۔
2. بالغ بیٹوں کی کفالت: اسلامی قانون کے مطابق بالغ بیٹوں کی کفالت والد پر لازم نہیں ہوتی جب تک وہ کسی جسمانی یا ذہنی معذوری کا شکار نہ ہوں۔ لیکن اس کیس میں عدالت نے یہ استثنا دیا کہ اگر بالغ بیٹے ابھی تک تعلیم حاصل کر رہے ہیں اور خود کفیل نہیں ہوئے، تو والد پر ان کا نان نفقہ واجب رہے گا۔
3. قانونی نظائر: فیصلے میں مختلف عدالتی نظائر کا حوالہ دیا گیا، جیسے "Humayun Hassan V. Arslan Humayun" کا مقدمہ، جس میں عدالت نے یہ اصول قائم کیا کہ تعلیم کی تکمیل تک والد کی ذمہ داری برقرار رہتی ہے، بشرطیکہ یہ تعلیم بچوں کی مالی خود کفالت میں مددگار ہو۔
4. والدین کی مالی حیثیت: عدالت نے والد کی مالی حیثیت اور بیٹوں کے تعلیمی اخراجات کو اہم قرار دیا۔ فیصلہ کرتے وقت عدالت نے یہ بات بھی مدنظر رکھی کہ والد کی آمدنی کیا ہے اور بیٹے کس نوعیت کی تعلیم حاصل کر رہے ہیں۔
یہ نکات پاکستانی قانونی نظام میں بچوں کے حقوق اور والدین کی ذمہ داریوں کے حوالے سے ایک منفرد اور اہم تشریح پیش کرتے ہیں۔
اس مقدمے میں محمد عمران نے آئین پاکستان کے آرٹیکل 199 کے تحت ایک درخواست دائر کی تھی، جس میں اپیلٹ کورٹ کے 14 ستمبر 2024 کے فیصلے کو چیلنج کیا گیا تھا۔ اس فیصلے میں عدالت نے عمران کی درخواست کو مسترد کر دیا تھا، جس میں انہوں نے اپنے دو بالغ بیٹوں (جو کہ مدعیان تھے) کو مقدمے سے خارج کرنے کی استدعا کی تھی۔ عمران کا موقف تھا کہ چونکہ ان کے بیٹے بالغ ہو چکے ہیں، اس لیے اسلامی قانون کے مطابق وہ ان کا مزید نان نفقہ دینے کے پابند نہیں ہیں۔
عدالت نے مختلف قانونی حوالہ جات اور اسلامی قانون کے اصولوں کا جائزہ لیتے ہوئے قرار دیا کہ بالغ بیٹے ابھی تک مناسب تعلیم حاصل نہیں کر پائے، اس لیے والد پر ان کے تعلیمی اخراجات برداشت کرنے کی ذمہ داری برقرار ہے۔ عدالت نے اپیلٹ کورٹ کے فیصلے کو درست قرار دیتے ہوئے درخواست کو ناقابل سماعت قرار دے کر خارج کر دیا۔
Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Writ Petition No.62571 of 2024.
Muhammad Imran.
Versus
Samina Kousar, etc.
S. No. of
order/
Proceeding
Date of order/
Proceeding
Order with signature of Judge, and that of
Parties or counsel, where necessary
11.10.2024
Ch. Tariq Latif, Advocate for the petitioner.
Through this Constitution Petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has called into question the validity &
legality of order dated 14.09.2024 passed by the learned
Appellate Court, pursuant whereto while accepting the
appeal of respondents No.1 to 5, application filed by the
petitioner under Order 1 Rule 10 of the Code of Civil
Procedure, 1908 for deletion of the names of respondents
No.2 & 3 (major sons of the petitioner) from the array of
plaintiffs, was dismissed.
2.
Facts in brevity are that respondents No.1 to 5
instituted a suit for recovery of maintenance allowance and
schooling expenses etc. against the petitioner. Latter
contested the suit by filing written statement in contrast.
During the pendency of the suit, the petitioner filed an
application under Order I Rule 10(2) of the Code of Civil
Procedure, 1908, by contending therein that since the
plaintiffs No.2 & 3/respondents No.2 & 3 have attained the
Writ Petition No. 62571 of 2024.
2
age of majority, hence, their names be deleted from the
array of plaintiffs. Learned Trial Court, after taking its reply
from the other side and providing opportunity of hearing to
both sides, allowed the application vide order/judgment
dated 15.12.2023 and strike out the names of respondents
No.2 & 3 from the array of plaintiffs. Feeling aggrieved, the
plaintiffs preferred an appeal which was allowed by the
learned Appellate Court vide impugned judgment dated
14.09.2024 and consequently dismissed the petitioner‟s
application. Hence, this writ petition.
3.
Preliminary arguments heard. Record perused.
4.
It evinces from the record that through the
application under Order I Rule 10 C.P.C. the stress of the
petitioner is that since the respondents No.2 & 3/plaintiffs
No.2 & 3 have attained the age of majority, hence, as per
para 370 of the “Principle of Muhammdan Law” by D.F
Mulla, petitioner is no more bound to maintain them and
their names be deleted from the array of plaintiffs as they
are neither proper party nor necessary party. Learned
counsel for the petitioner while reiterating the stance taken
in the application has relied upon case laws sited as “Mst.
Aila Nawaz V. Judge Family Court, Khanewal and 2 others” (2018
CLC 241) and “Muhammad Riaz ahmad V. Mst. Shaheen Akhtar
and 3 others.” (PLD 2023 Lahore 317).
5.
There is no dispute with regard to the majority of
respondents No.2 & 3 as the plaintiffs in their suit have
Writ Petition No. 62571 of 2024.
3
mentioned their ages at that time as 20 years and 18 years
respectively. Perusal of the plaint further reflects that
through the suit respondents/plaintiffs have not only
claimed the maintenance allowance but also claimed the
educational, travelling and food expenses.
6.
There is no cavil with the proposition that the
maintenance, in relation to Muslim relatives shall be
governed and regulated by the principles/injunctions of
Islam i.e as per the personal law of the parties.
7.
The word „maintenance‟ has been defined in Black‟s
Law Dictionary (11th Edition) as under:-
“….5. Financial support given by one person to
another”.
In Oxford Dictionary it has been defined as under:-
“The money needed for somebody‟s living
expenses; the act of providing this money.”
It has been defined in para 369 of the “Principles of
Muhammdan Law” by D.F. Mulla as
“369. Maintenance defined
____
“Maintenance in this chapter includes food,
raiment and lodging.”
8.
As per para 370 of the Muhammadon Law, a father is
bound to maintain his children. To his sons until they have
attained the age of puberty unless they are disabled by
infirmity or disease, and to his daughters until they are
married, however, he is not bound to maintain a child who
Writ Petition No. 62571 of 2024.
4
is capable of being maintained out of his or her own
property. For reference, para 370 is reproduced as under:-
“370.—(1) A father is bound to maintain his son 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 (S. 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.
(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.”
9.
Although, according to Section 369 of the
“Principles of Muhammadan Law” by D.F. Mulla,
maintenance means and includes food, raiment and lodging
and as per Section 370 it is described that a father is not
bound to maintain adult sons unless they are disabled by
infirmity or disease but Hon‟ble Supreme Court of Pakistan
in a case titled “Alaf Din V. Mst. Parveen Akhtar” (PLD
1970 SC 75) while elaborating the maintenance of children,
has held as under:-
"Normally a child, after attaining majority, would be
physically in a position to maintain itself, for, it would
then be capable of earning some kind of a livelihood.
But this again is a question which will depend upon
the status and circumstances of each individual family.
Thus, although the section does not make any
reference to the age of majority, it is a consideration
which must inevitably be taken into account by the
Court when deciding the question as to whether the
child is or is not able to maintain itself. Thus an infirm
or decrepit or deformed son or daughter may be
entitled to claim maintenance even up to a very
advanced age, while an able-bodied son or daughter
might be deprived of the right if he/she has already
found suitable gainful employment and is in a position
to maintain himself or herself
Writ Petition No. 62571 of 2024.
5
Again in interpreting the word "maintenance"
some reasonable standard must be adopted. Whilst it
is not confined merely to food, clothing and lodging, it
cannot, by any stretch of imagination, be extended to
incorporate within it education at higher levels ad
infinitum. What is necessary to decide in this
connection is to find out as to what amount of
education has to be attained by the child concerned,
having regard to the status and other circumstances of
his family, to enable it to earn a complete livelihood by
honest and decent means. Thus it may not be sufficient
to say that the child of a tradesman can maintain itself
by working as coolly or by thieving. What is required
is that the child must be maintained until it is in a
position to earn its own livelihood, in an honest and
decent manner in keeping with its family status
(emphasis supplied)"
10. It is not disputed by the respondents‟ side, that
Abdul Wassey (respondent No.2) who was born on
16.10.2002 is at the age of 22 and Abdul Raffay (respondent
No.3) who was born on 04.09.2004 is at the age of 20 and
they have attained the age of puberty; they are major in
terms of section 3 of the Majority Act, 1875 read with
section 4 of the Guardians & Wards Act, 1890 and in any
case they are an adult and not a minor any more. They are
not suffering from any disability on account of infirmity or
disease, therefore, the petitioner being their father in the
ordinary course is not obliged to maintain them. However,
some renowned jurist in their exposition on the subject have
expanded the scope of exception.
Neil B.E. Baillia in his book/digest Muhammadan
Law has described as under:-
„And so also students of learning, when unable to earn
anything; and their right to maintenance from their
fathers does not abate while engaged in legal study.
Furthermore
Writ Petition No. 62571 of 2024.
6
„when a man is absent, but has left available
property maintenance may be ordered out of it by the
judge to the following persons if they are poor; but
to none other, viz., his parents; his male children if
young, or, though adult, if unable to gain their
livelihood. (emphasis supplied)
Ammer Ali (Syed) in his commentaries on
Mahommedan Law, revised edition by Justice S.H.A.
Raza has opined as:-
“Maintenance of male children.—The
obligation of maintaining the male children lasts until
they arrive at puberty. After this, a father is not bound
to maintain his male children, unless they are
incapacitated from work through some diseases or
physical infirmity, or are engaged in study. When
male children are strong enough to earn their own
livelihood, though nor actually adult, the father may
set them to work for their own subsistence or hire
them out for wages. (emphasis supplied)
If the male children are actually able to
work, but the employment found for them is
unsuitable or improper for their rank in life,
they would be placed on the same footing as
children laboring under some infirmity. Ability
to work must, in such cases, be considered with
reference to the social position of the children,
as well as the parents; so that a father
occupying a respectable position,. In which the
children have been brought up delicately must
not hire them out for work is degrading in its
nature or associations.”
In the Principles of Muhammadan Law by Dr. Nishi
Purohit, it has been provided as—
“Father‟s obligation of maintenance comes
to an end when the sons become major. But the
father is required to maintain his adult son who
has been disabled on account of some disease,
or physical or mental infirmity or is engaged in
study (emphasis supplied).”
It means that the right of maintenance does not limit
itself only to food, raiment and lodging but also entails all
other necessary expenses for the mental and physical well
being of the recipient.
Writ Petition No. 62571 of 2024.
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11. The Hon‟ble Supreme Court of Pakistan, in a case
titled “Humayun Hassan V. Arslan Humayun and another”
(PLD 2013 Supreme Court 557) while keeping in view
paras No.369 and 370 of the Muhammdan Law and opinion
of other renowned jurists, has held that in the present days
social, physical, mental growth, upbringing and well-being
of the minor, keeping in mind the status of the family, the
norms of the society and the educational requirement which
has now attained utmost importance are also liability of the
father and observed as under:
“However, it may be observed that from the very
language of the above section, such definition is
neither conclusive nor exhaustive, and in our view it
undoubtedly has a wider connotation and should be
given an extended meaning, for the purposes of
meeting and catering for the present days social,
physical, mental growth, upbringing and well being of
the minor, keeping in mind the status of the family, the
norms of the society and his educational requirement,
which has now attained utmost importance
{Ahmedellah V. Mafizuddin and another (AIR 1973
Gauhati 56)}; but obviously corresponding to and
commensurating with the means and the capacity of
the father to pay.”
Further observed as under:-
“Be that as it may, in view of the preponderance of the
opinion of the jurists as has been referred to above, it
emerges that the obligation of the father to maintain his
adult son who has not yet accomplished his basic
education, enabling him to earn his livelihood, may be
considered by the court(s) in an appropriate case, a
factor falling within the exception to the general rule
(supra). But for that, a specific case has to be initiated
and set out by the son, before the Court or original
jurisdiction (competent jurisdiction); and the Court on
the basis , of the case so propounded; the pleadings of
the parties after conducting the trial is obliged to
determine in each case, with reference to the facts of
that case, whether the adult son should at all be entitled
to the maintenance, as he still is pursuing his education;
the Court in this regard shall keep into consideration,
his age; whether he has his own resource to sustain his
studies; the nature and the stage of his studies; his
academic results, his fervor and zeal for the education;
the extent of education which is essential, enabling him
Writ Petition No. 62571 of 2024.
8
to earn the livelihood; obviously, this shall not include
the higher studies, and in any case not the education
abroad; especially where the son has gone abroad for
such education either of his own without there being any
promise by the father or on the behest of someone else
who had assured him to support. It may be pertinent to
mention that while determining and adjudging whether
the father should provide maintenance to his adult son
one of the important factors which should be kept in
view by the Court(s) is whether the son gives due respect
and show regard to his father, and in any case is not
disobedient or estranged man. Besides the capacity of
the father in this behalf should also be kept into view.”
12. It emerges that the obligation of the father to
maintain his adult son who has not yet accomplished
basic education, enabling him to earn his livelihood, may
be considered by the court in an appropriate case, a factor
falling with the exception to the general rule (supra).
13. Education is the necessary qualification which is
required to a person to enable him to earn bread and
butter. It does not include higher studies and studies
abroad. From the analysis of above referred case laws,
this Court has observed that the learned Trial Court has to
ascertain in the light of evidence of the parties as to which
extent the father is bound to pay the educational expenses
of an adult son. While doing so, following points must be
taken into account by the learned Trial Court:-
i) First and the foremost consideration is the capacity
and financial status of father.
ii) Age and conduct of the adult son.
iii) Whether the adult son has his own resources to
sustain his studies.
iv) The nature and stage of studies.
v) Academic performance of adult and his passion &
zeal towards the education
Writ Petition No. 62571 of 2024.
9
vi) The extent of education which is essential to enable
him to earn his livelihood. Obviously, this shall not
include the higher studies, especially studies
abroad without there being a promise by the father
to support him.
vii)Whether the son gives due respect and show regard
to his father and in any case is not disobedient or
estranged man.
14. It shall also be determined by the learned Trial
Court after recording evidence of the parties and
analyzing status of the father as to whether the adult sons
are entitled to receive maintenance allowance or not.
15. No doubt the court may at any stage of the
proceedings, either upon or without the application of either
party, and on such terms as may appear to the court be just,
order that the name of any party improperly joined, whether
as plaintiff or defendant, be struck out. The party who has
no connection with the relief sought may be struck off from
the record as a party. The court can also strike out a party
over whom it has no jurisdiction. Whether a party is to be
struck out or not is to be determined on the basis of plaint as
framed. The word „Party‟ has been defined in West Pakistan
Family Courts Act, 1964 as under:-
Section 2 (d)
“Party” shall include any person whose presence as
such is considered necessary for a proper decision of
the dispute and whom the Family Court adds as a
party to such dispute.”
The Hon‟ble Supreme Court of Pakistan in a case
titled Muhammad Arif and others Vs District & Sessions Judge,
Sialkot and others (2011 SCMR 1591) defined it as under:-
Writ Petition No. 62571 of 2024.
10
“5……This definition has two parts which for
convenience are serialized (a) and (b):-
(a) Any person whose presence as such is considered
necessary for the proper decision of the dispute.
(b) Any person who the Family Court adds as a party to
such dispute.
6. The nature of family dispute and jurisdiction of
the family court is special as well as peculiar. The
West Pakistan Family Courts Act, 1964 was therefore,
legislated “to make provision for the establishment of
Family Courts for the expeditious settlement and
dispose of the disputes relating to marriage and family
affairs and for matters connected therewith”. It was in
this perspective that the definition of the term „Party‟
was specifically codified in section 2(d)in this Act.
This definition is though not very different from the
one obtaining under C.P.C. yet it is comparatively
more liberal and extensive than the proverbial
„necessary or property party‟ of a civil suit.”
16. In view of above discussion it is observed that
respondents No.2 & 3 are proper and necessary party and
their presence is necessary for the proper decision of the
controversy involved in the respondents‟ suit.
17. For the foregoing reasons, learned Appellate Court
has rightly allowed appeal of the respondents. Learned
counsel appearing on behalf of the petitioner remained
unable to point out any illegality, irregularity or
jurisdictional defect in the impugned order. Impugned order
is well-reasoned and passed after due appreciation of the
record as well as merits of the case which is not open to any
exception or interference by this Court while exercising
constitutional jurisdiction. The case laws referred to by the
learned counsel for the petitioner are not relevant to the
facts and circumstances of this case, therefore, not helpful
for the petitioner.
Writ Petition No. 62571 of 2024.
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18. The epitome of above discussion is that instant
petition is meritless, hence, the same is dismissed-in-limine.
(AHMAD NADEEM ARSHAD)
JUDGE
APPROVED FOR REPORTING.
JUDGE
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