1994 C L C 1216
[Lahore]
Before Ch. Mushtaq Ahmad Khan, J
MUKHTARUL HASSAN SIDDIOUI ‑‑‑ Petitioner
versus
JUDGE FAMILY COURT, RAWALPINDI and 4 others‑‑‑Respondents
Writ Petition No. 1079 of 1990, decided on 8th December, 1993.
(a) Muhammadan Law
‑‑‑‑Maintenance‑‑‑Entitlement of wife and children to claim maintenance from husband/father‑‑‑Exceptions‑‑‑Principles governing entitlement/disentitlement to claim maintenance.
A disobedient wife who was living away from husband not due to his fault was not entitled to claim separate maintenance; wife who was a "Nashiza" and was living away from her husband and disallowed him to enter the house where she was living was not entitled to the grant of maintenance; father was bound to maintain his minor children if he had failed or neglected to maintain them; father was not bound to maintain his major child except in the following cases:‑‑
(i) if the child was incapacitated or was unable to earn his livelihood;
(ii) if the child was getting education, up to a reasonable stage getting education which commensurates with the existing status of the father not ad infinitum;
(iii) that a disobedient major child was not entitled to grant of separate maintenance as he failed to perform obligations imposed upon him by Qur'anic Injunctions without fulfilling whereof he could not claim right of maintenance, even if he was getting education;
(iv) that liability to pay maintenance and the quantum thereof was to be fixed keeping in view the Laws of the Country and the financial conditions of the father and his other liabilities;
(v) that the wife and the children have to obey the husband/father except in case of Command of Shirk or Kufr.
(b) Muhammadan Law‑‑‑
‑‑‑‑Maintenance‑‑‑Disobedient wife and disobedient major children were not entitled to claim maintenance from husband/father‑‑‑Merely because husband/father had taken a second wife was not a sufficient ground not to allow him to enter the house or to lodge criminal proceedings against him‑‑Facts brought out at the trial clearly established that wife and major children were disobedient to husband/father, thus, losing their right to maintenance.
(c) Muhammadan Law‑‑‑
‑‑‑‑ Maintenance for education of a son who had attained age of majority‑‑Father was a middle class person, his son having attained age of majority (22 years) had already completed normal education which was usually taken by middle class people, therefore, the stage of education at which presently his son was, could not be deemed to be a stage in the normal course of family tradition of father‑‑‑Father, therefore, could not be said to be responsible for maintenance of that child who was major even if he was getting some higher education.
(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Maintenance‑‑Quantum of‑‑‑Whether determination of quantum of maintenance falls within scope of Constitutional jurisdiction‑‑‑Husband had already given a house to his wife at the time of marriage for purpose of "Guzara" which was in her possession and the children were also living with her in that house‑‑‑Grant of maintenance to minor child amounting to Rs.500 per mensem was in circumstances sufficient at present‑‑‑Even otherwise question of maintenance was not a subject to be gone into in exercise of Constitutional jurisdiction of High Court‑--Under changed circumstances and needs of minor, fresh proceedings could be maintainable before the Family Court which was a Court of competent jurisdiction.
Habibul Wahab El‑Khairi for Petitioner.
Ibadur Rehman Lodhi for Respondents Nos.3 to 5.
Date of hearing: 8th December, 1993.
JUDGMENT
This judgment will dispose of two connected Writ Petitions Nos. 1079 of 1990 and 1230 of 1990, which arise out of the same suit for grant of maintenance filed by the wife and the children of the petitioner, who are respondents Nos. 3 to 5 in this petition.2. Briefly stated facts of the case out of which these petitions have arisen are that Mukhtarul Hassan Siddiqui, petitioner in this writ petition was married to Mst. Shaheen Hayat respondent No.3 on 29‑2‑1964. Out of the wedlock four children were born. Bilal, a son was born on 5‑10‑1964 and is married. Mst. Aisha Mukhtar a daughter was born on 3‑6‑1967 and is now married. Ummar Mukhtar was born on 23‑2‑1971,.who is now aged about 22 years and is respondent No.4 in this writ petition, whereas Muhammad Ali .Mukhtar respondent No.5'was born on 19‑5‑1983 and presently is aged 10‑1/2 years. The spouses are said to have separated on 5‑7‑1987 in the manner that according to the petitioner he was turned out of his house by his wife respondent No.3 and the children, whereas according to respondents Nos.3 to 5, he himself left the house and married another woman next day. On 6‑7‑1987 respondent No.3 filed a suit seeking declaration to the effect that she is owner in possession of the house No. D‑307, Satellite Town, Rawalpindi which was given to her at the time of marriage and that the petitioner may be restrained from interfering with her possession of the house. Alongwith the plaint an application for grant of interim relief was also filed wherein interim stay was granted restraining the petitioner to interfere with possession of the plaintiff/applicant in any manner till decision of the suit. The suit is admitted to have been dismissed against which an appeal was filed which has also been decided. Against the decision of that appeal C.R. 147/92 has been filed by respondent No.3 which is pending in this Court. Respondents Nos. 3 to 5, and Mst. Aisha Mukhtar filed a suit for recovery of maintenance in the Court of learned Judge Family Court, Rawalpindi on the ground that the petitioner has deserted the plaintiffs and has started living in a separate house with a second wife therefore he may be directed to pay maintenance to the plaintiffs at the. rate of Rs.500 per month. This suit which was filed on 5‑1‑1988, was contested by the petitioner on the ground that respondent No.3 is herself responsible for living separately and in fact is a disobedient wife. Similarly Mst. Aisha Mukhtar and Ummar Mukhtar, two children who are major are also not entitled to the grant of any maintenance inasmuch as they are disobedient to the petitioner and further that the house wherein the plaintiffs are living was given to the respondent No.3 for the purpose of maintenance and hence they can maintain themselves by renting out the said house. On the basis of the pleadings of.the parties learned Judge Family Court settled following issues:‑‑
(1) Whether this suit is based on mala fide and the suit has been filed to put pressure on the defendant to have divorce? OPD
(2) Whether the plaintiffs are entitled to have maintenance allowance from the defendant? If so, on what rate and for which period? OPP
(3)Relief.
To prove the above issues, respondent No.3 appeared as P.W.1 whereas the petitioner appeared as D.W.1. Besides oral evidence, the petitioner placed on record copy of plaint of the suit filed by the respondent No.3 as marked `B' and copy of interim Stay Order passed by the learned Trial Court, as marked `C'. Copy of the Nikahnama as Exh. D.1. and copy of Kalandra under section 107/150 Cr.P.C. dismissed on 2‑11‑1987, is as mark `A'.
3. After going through the evidence produced by the parties, learned Judge Family Court vide order dated 26‑2‑1990 held that respondent No.3 is rebelious and disobedient woman inasmuch as she has ousted the petitioner from his house by filing of civil suit and by approaching the police authorities and had also got his daughter who is plaintiff No.2 married during the pendency of the suit without his consent therefore she is not entitled to claim maintenance. Regarding other plaintiffs, learned trial Court held that as the plaintiff No.2 who is major and has got married during the pendency of the suit and claim for her maintenance has been given up by the learned counsel for the plaintiffs, she is also not entitled to the grant of maintenance. Regarding plaintiffs Nos.3 and 4 learned trial Court held that both of them are entitled to the grant of maintenance inasmuch as, they are minors. Therefore the father is under a primary duty of maintaining the said children. Learned trial Court held that merely because minors are disobedient to the father, does not disentitle them to claim maintenance from him, who is a Assistant Director (Electrical) in the Airport Development Authority, therefore, is liable to pay maintenance at the rate of ks.250 per month per child w.e.f. the date of institution of the suit i.e. 5‑1‑1988, hence the suit to the above extent was decreed. Aggrieved of this judgment and decree, respondents Nos.3 to 5 filed an appeal before the learned District Court, Rawalpindi claiming therein that respondent No.3 was also entitled to the grant of maintenance, further that amount of maintenance granted to the respondents Nos.4 and 5 may be enhanced. The petitioner also filed an appeal challenging the aforementioned order to the extent of grant of maintenance to Ummar Mukhtar respondent No4 Learned District Judge, Rawalpindi vide order dated 30‑6‑1990 dismissed the appeal filed by the petitioner and partly accepted the appeal filed by the respondents Nos.3 to 5 and maintaining the order of refusal to pay maintenance to respondent No.3, enhanced the amount of maintenance from Rs.250 per month per child to Rs.500 per month per child payable to respondents Nos.4 and 5, hence these two Constitutional Petitions have been filed in this Court. Writ Petition No. 1079/90 has been filed by Mukhtar‑ul‑Hassan Siddiqui, petitioner challenging the order of payment of maintenance passed by the two Courts below in favour of respondent No.4 whereas. Writ Petition No. 1230/90 has been filed by respondents Nos.3 to 5, wherein it has been prayed that the wife is also entitled to the grant of maintenance and further that the rate of maintenance payable to respondents Nos.4 and 5 fixed by the learned Court below is inadequate, hence, decree for payment of maintenance to wife and enhancement of rate of maintenance has been prayed for in this petition.
4. Mr. Habibul Wahab El Khairi, Advocate has appeared on behalf of the petitioner in W.P. No. 1079 of 1990 and on behalf of contesting respondent No.l in W.P. No. 30 of'1990 whereas Mr. Ibadur Rehman Lodhi, Advocate has appeared on behalf of writ petitioners in W.P. No. 1230 of 1990 and on behalf of contesting respondents No& 3 to 5 in W.P. No. 1079 of 1990. With consent of both the learned counsel for the parties, consolidated arguments have been heard in both these matters which are being disposed of by this consolidated order.
5. Mr. Ibadur Rehman Lodhi, Advocate, learned counsel for the plaintiffs‑respondents Nos.3 to 5 has argued that the order of refusal of grant of maintenance to plaintiffs, who is admittedly the wife of the petitioner and hence is entitled to the grant of maintenance is illegal and without a lawful authority. Learned counsel has contended that the rate of maintenance granted to respondents Nos. 4 and 5 is inadequate keeping in view inflationary conditions prevailing. in the country inasmuch as the plaintiff No. 4, who is presently aged 22 years is a student' of I.C.M.A. whereas Muhammad Ali Mukhtar plaintiff‑petitioner No.3 is aged about 10 years and therefore, amount of Rs.500 as maintenance per child, is not at all sufficient to cater for their needs. Elaborating his arguments, learned counsel has placed reliance on the following verses from the Holy Our'an:‑‑
"Mothers shall suckle their children for two whole years; (that is) for those who wish to complete the suckling. The duty of feeding and clothing nursing mothers is a seemly manner is upon the father of the child. No one should be charged beyond ones capacity. A mother should not be made to suffer because of her child, nor should he to whom the child is born (be made to suffer) because of his child. And on the (father's) heir is incumbent the like of that (which was incumbent on the father). If they desire to wean the child by mutual consent and (after) consultation, it is no sin for them; and if ye wish to give your children out of nurse, it is no sin for you, provided that ye pay what is due from you in kindness. Observe your duty to Allah, and know that Allah is Seer of what ye do."
34 "Men are incharge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women). So good women are the obedient, guarding in. secret that which Allah has guarded. As far those from whom you fear rebellion, admonish them and banish them to beds apart, and scourge them. Then, if they obey you, seek not a way against them. Lo! Allah is ever High, Exalted, Great."
26."Give the kinsman his due, and the needy, and the wayfarer, and squander not (thigh wealth) in wantonness.
27. Lo! the squanderers were ever brothers of the devils, and the devil was ever an ingrate to his Lord.
28. But if thou turn away from them, seeking mercy from the Lord, forwhich thou hopest, then speak unto them a reasonable words.
29. And let not thigh hand be chained to thigh neck nor open it with a complete opening, lest thou sit down rebuked, denuded.
30. Lo! thigh Lord enlargeth the provision for whom He will, and straiteneth (it for whom He will). Lo, He was ever Knower, Seer of His slaves.
31. Slay not your children fearing a fall of poverty. We shall provide forthem and for you. Lo the slaying of them is a great sin."
"And let not those who possess dignity and ease among you swear not to give to the near of kin and to the needy, and to fugitives for the cause of Allah. Let them forgive and show indulgence, Yearn ye not that Allah may forgive you? Allah is Forgiver, Merciful."
38. "So give to the kinsman his due; and to the needy, and to the wayfarer. That is best for those who seek Allah's countenance. And such are they who are successful." .
(English translation of the above verses is by Marmaduke Pickthall).
The exact argument of the learned counsel for the petitioner as built with reference to the aforementioned Qur'anic verses is that the husband is bound to maintain his wife and children and failure to pay maintenance amounts to violation of Our'anic Injunctions, therefore, the impugned order of refusal of maintenance to respondent No.3 and the order for payment of inadequate maintenance to other respondent are illegal and are without a lawful authority. Learned counsel has taken me through the evidence produced in the case which consists of the statements of P.W. 1 and D.W. 1 and has pointed out that the two Courts below have misread the evidence and have omitted to take into consideration material portions thereof while coming to the conclusions that the plaintiff‑petitioner No.l is not entitled to the payment of maintenance as she is disobedient wife. Referring to the statement of P.W. 1, learned counsel has stated that the petitioner had denied the suggestion‑that she has created hatred in the mind of minors towards petitioner and that they are disobedient to him at her instance, but two Courts below have not given much weight to the denial of these suggestions. Referring to the statement of Mukhtarul Hassan Siddiqui, D.W.1, learned counsel has pointed out that in cross‑examination this witness has admitted that he had remarried on 6‑7‑1987 and he had not paid maintenance to the plaintiffs but no weight has been given by the two Courts below to this admission, therefore, the judgments rendered by the two Courts below are illegal and without a lawful authority. I have asked the learned counsel to specifically point out as to what evidence has been misread or what portion of evidence has been omitted from consideration, learned counsel states that in fact his argument is that it is a case of wrong appreciation of evidence. He has not been able to point out any material portion of evidence which has either been misread or omitted from consideration. Learned counsel has further contended that even if it is assumed for the sake of arguments that the plaintiffs are disobedient, still it is the duty of defendant‑petitioner to maintain them in view of Qur'anic Injunctions referred to by him which have been reproduced in the upper portion of this order and also in view of the law declared in case of Muhammad Afsar v. Mst. Munawar Jan (PLD 1961 Lah. 199). .
5. As against the above arguments Mr. Habibul Wahab El‑Khairi, Advocate learned counsel for the petitioner has argued that it is established on record that the respondents Nos.3 and 4 are disobedient wife and major son respectively hence both of them are not entitled to claim maintenance from the petitioner No.l. In support of his arguments, learned counsel has placed reliance on the following verses from the Holy Qur'an, which are reproduced hereunder:‑‑
And (remember) when We made a covenant with the Children of Israel, (saying): Worship none save Allah (only), and be good to parents and to kindred and to orphans and the needy, and speak kindly to mankind; and establish worship and pay the poor‑due. Then, after that, ye slid back save a few of you, being averse."
215. 'They ask thee, (O Muhammad), what they shall spend. Say: That which ye spend for good (must go) to parents and near kindred and orphans and the needy and the wayfarer. And whatsoever good ye do, Lo! Allah is Aware of it:
36. And serve Allah. Ascribe nothing as partner unto Him. (Show) kindness unto parents, and unto near kindred, and orphans, and the needy, and unto the neighbour who is of kin (unto you) and the neighbour who is not of kin, and the fellow‑traveller and the wayfarer and (the slaves) whom your right hands possess. Lo! Allah loveth not such as are proud and boastful".
152. "And approach not the wealth of the orphan save with that which is better, till he reach maturity. Give full measure and full weight, in justice. We task not any soul beyond its scope. And if ye give your word, do justice threunto, even though it be (against) a kinsman; and fulfill the covenant of Allah. This he commandeth you that haply ye may remember."
83."And We rescued him and his household save his wife, who was of those who stayed behind.
84. And We rained a rain upon them. See now the nature of the consequence for evildoers."
45: "And Noah cried unto his Lord and said: My Lord Lo! my son is 'of my household; Surely Thy promise is the Truth and Thou are the Most Just of Judges."
46. He said: O Noah Lo! he is not of thy household; Lo he is of evil conduct, so ask not of Me that whereof thou hast no knowledge. I admonish thee lest thou be among the ignorant.
47. He said: My Lord! Lo!' in thee do I seek refuge (from the sin) that I should ask of Thee that whereof I have no knowledge: Unless Thou forgive me and have mercy on me I shall be among the lost."
23. Thy Lord hath decreed, that ye worship none save Him, and (that ye show) kindness to parents. If one of them or both of them attain to old age with thee, say not "Fie" unto them nor repulse them, but speak unto them a gracious word. .
24. And lower unto them the wing of submission through mercy, and say: My Lord Have mercy on them both as they did care for me when I was little."
14. "And we have enjoined upon man concerning his parents‑‑His mother beareth him in weakness upon weakness, and his. weaning is in two years‑‑Give thanks unto Me and unto thy parents. Unto Me is the journeying.
15. But if they strive with thee to make thee ascribe unto Me as partner that of which thou hast no knowledge, then obey them not. Consort with them in the word kindly, and follow the path Whim who repenteth unto Me. Then unto Me will be your return, and I shall tell you what ye used to do."
8. "We have enjoined on mankindness to parents; but if they strive to make thee join with Me that of which thou hast no knowledge, then obey them not. Unto Me is your return and I shall tell you what ye used to do."
"Say; cone, I will recite unto you that which your Lord hath made a sacred duty for you: that you ascribed nothing as partner unto Him and that ye do good to parents, and that ye slay not your children because of penury‑‑We provide for your and for them and that ye draw not nigh to lewd things whether open or concealed. And that ye slay not the life which Allah hath made sacred, save in the course of justice. This He hath commanded you, in order that ye may discern."
"5‑A. Making reference to aforementioned Injunctions of Islam contained 'in Qur'an and Sunnah, learned counsel has argued that a disobedient wife and child to the father are not at all entitled to claim maintenance from him. Learned counsel has made a special reference to verses No. 233 and 286 from Surah "Al‑Baqrah" as well as verses No. 45 and 46 of Surah "Hood" from Holy Qur'an and has contended that the children do not have an unconditional right of maintenance from the father. Firstly they have to be obedient and secondly the maintenance has to be paid in accord with "Dastur". He has pointed out that a disobedient son of "Hazrat Nooha" who had failed to obey the command of God conveyed to him through his father had to die alongwith Kafirs. According to the learned counsel, similarly a disobedient wife of Hazrat Loot, had to die alongwith Kafirs as she disobeyed the Command of God conveyed to her through her husband. The aforementioned verses, therefore, clearly prove that a disobedient wife and child are not entitled to grant of separate maintenance from the husband/father. Learned counsel has further contended that at any rate Ummar Mukhtar respondent No.4 being major is not at all entitled to the grant of maintenance as it cannot be said that he is unable to earn his livelihood. Referring to the case of Muhammad Afsar v. Mst. Munawar Jan (PLD 1961 Lah. 199) cited by the learned counsel for the petitioner, it is contended that the same is distinguishable on facts as in that case, the child for whom the maintenance was claimed was incapacitated and hence unable to earn his livelihood but in this case, admittedly the child is not incapacitated and he is a major, therefore, the petitioner cannot be held to be liable to pay maintenance to him who is living away against the wishes of his father and is also disobedient. Regarding the findings of fact rendered by the Courts below learned counsel has pointed out that the two learned Courts below of exclusive jurisdiction have scanned the whole evidence produced it the case and, have come to the conclusion that the respondent No. 3 is disobedient. This finding is not without any lawful basis and justification. No portion of evidence has been misread or omitted from considerations. Copy of the plaint mark `B' and copy of the interim stay order mark `C' and copy of Kalandara mark' A' clearly prove that the respondents are disobedient to the petitioner and have insulted him and involved him even in false criminal proceedings. The petitioner is and has been illegally restrained from entering the house wherein he has been living alongwith the plaintiffs before 5‑7‑1987. Respondent No.l hence is and has refused to perform marital obligations and has rather adopted an abnoxious attitude. Therefore, she has rightly been refused payment of maintenance. It is not a case of misreading or non‑reading of evidence, hence no interference is possible in Constitutional jurisdiction of this Court. Last argument of the learned counsel for the petitioner is that the house wherein the plaintiffs are living originally belonged to him and was given to respondent No.l for the purpose of maintenance of the wife as is clear from the following entries in column Nos.16, 17 of Nikahnama Exh.D2:‑
Therefore, if the plaintiffs have some difficulties to maintain themselves, they can use the house for their maintenance purpose by renting it out in part or as a whole and, therefore, it cannot be said that the respondent‑defendant has failed or neglected to maintain the respondents‑plaintiffs, therefore, the impugned order of grant of maintenance to Ummar Mukhtar, major child who is respondent No.4 before this Court, is also illegal and without a lawful authority.
7. Before embarking upon the determination of the matters in issues, it would be. advantageous to reproduce the relevant portions from the authoritative Books on the, subject and relevant portions of some of the relevant judgments:‑‑‑
Muharnmadan Law by Syed ArneerAli by Said Akbar Khan, Vol. Il..
Page 386. "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 disease or physical infirmity, or are engaged in study. When male children are strong enough to earn their own livelihood, though not actually adult, the father may set them to Work for their own subsistence, or hire them out for wages.
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 labouring 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 which is degrading in its nature or associations.
When an adult son is lame, or paralytic, or is in any way a cripple, the obligation of maintaining him rests on the father; so also if ‑he be insane."
MULLA'SMAHMOMMEDANLAW, HIDAYAT UL LAH (17TH EDITION)
Section 370 (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 maintainhis adult Sons unless they are disabled by infirmity or 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 (a). But the father is not bound to maintain a child who is capable, of being maintained out of his or her own property."
The views of four Imams on the subject as given in "Kitabul Fiqah" Vol. IV by Abdur Rehman Al‑Jazeeri, translated by ManzoorAhsan Abbasi .areas under‑‑
In case of Alaf Din. v. Mst. Parveen Akhtar (PLD 1975 SC 75)‑ at pages 78‑79 of the report it has been held as under:‑‑
"Section 488, Cr. P.C. creates a statutory liability, independent from the personal law liability, for the maintenance of one's wife and children, both legitimate, and illegitimate who are unable to maintain themselves. The word "child" has not been defined in the Code but this does not mean that it can be construed without any regard for its ordinary or natural meaning or in such a way as to produce an absurdity. Though the word "child" in its widest sense may mean any son or daughter or any progeny yet, I venture to think, it cannot extend to embrace within its fold a person of 40 or 50 just because his parents are alive. In most cases, however, no difficulty will arise, for the condition that section 488, Cr.P.C. imposes is that the child must be "unable to maintain itself'. 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 inevitable by 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.
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 rind 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.
It is unfortunate that the learned counsel appearing in support of this appeal, did not choose to argue this point, but we would nevertheless like to indicate that if the respondent girl has graduated or has since obtained gainful employment which enables her to maintain herself in accordance with the status of her father's family, then it will be open to the appellant to apply under section 489, Cr.P.C. for the variation or cancellation of the order of maintenance."
In case of Muhammad Afsar v. Mst. Munawar Jan (PLD 1961 Lah. 201) wherein at page 204 of the report it has been held as under:‑‑
"Lastly, the learned counsel for the petitioner has argued that Zubaida Khanam and Kubra Khanam have now attained the age of puberty and consequently they do not fall within the category of "child" and, therefore, the petitioner is not liable to maintain them. In my opinion this contention is equally devoid of force. Firstly, there is no material on the record to establish that they have attained the age of puberty, but even if they have, they have not ceased to be the children of the petitioner. A father is bound to maintain his children so long as they are unable to maintain themselves. This is the only condition which is laid down in section 488, Cr.P.C. It has not been even suggested that Zubaida Khanam and Kubra Khanam are now able to maintain themselves. The age of the child is not very material. If a child having attained the age of majority is unable to earn its living due to lack of physical and mental development, the father is certainly liable to maintain him. For the purposes of section 488, Cr.P.C., a child whatever his age may be remains a child so 'long as he is unable to maintain himself."
8. I have considered the arguments addressed by the learned counsel for the parties, have also gone through the records, Qur'anic verses, Ahadis and case‑law cited at the bar, views of various Authors of Authoritative Books on the subject and Fiqah. From the perusal of the aforementioned Qur'anic verses, Ahadis, Authoritative Books and case‑law referred to above, the following principles of law can be deduced:‑‑
(a) that a disobedient wife who is living away from husband not due to his fault is not entitled to claim separate maintenance;
(b) that wife who is a "Nashiza" and is living away from her husband and disallows him to enter the house where she is living is not entitled to A the grant of maintenance;
(c) that father is bound to maintain his minor children if he has failed or neglected' to maintain them;
(d) that father is not bound to maintain his major child except in the following cases:‑‑
(i) if the child is incapacitated or is unable to earn his livelihood;
(ii) if the child is getting education, up to a reasonable stage of getting education which commensurates with the existing status of the father, not ad infinitum;
(iii) that a disobedient major child is not entitled to grant of separate maintenance as he fails to perform obligations imposed upon him by Qur'anic Injunctions without fulfilling whereof he cannot claim right of maintenance, even if he is getting education;
(iv)that liability to pay maintenance and the quantum thereof is to be fixed keeping in view the Laws of the Country and the financial conditions of the father and his other liabilities;
(v) that the wife and the children have to obey the husband/father except in case of Command for Shirk or Kufr.
I propose to determine the controversy involved in this case in the light of the legal principles referred to above. This is a Constitutional petition. Two learned Courts below of exclusive jurisdiction after going through the evidence and scanning of the same have come to the conclusion that respondent No. 3 is disobedient wife. The conclusions arrived at by the two Courts below are based upon evidence on record. No misreading or omission to consider any material portion of evidence has been proved. It is established on record that a civil suit had been filed by the respondent No. 3 against the petitioner seeking a restraint order against him to interfere with the possession of the house where he has been living with his family earlier thereon. Interim stay till the decision of the suit was also issued by the learned Civil Judge restraining the petitioner to interfere with the possession and hence to enter the house. This litigation has reached up to the level of this Court and is being prosecuted by respondent No. 3 in C.R.No. 147 of 1992. The above facts are proved by documents marked `B & C', which were placed before the learned Judge Family Court as evidence and are also admitting the learned counsel for the respondents during the course of arguments. Document mark `A' which is a copy of Kalandra under section 107/150 Cr.P.C. which was dismissed on 2‑11‑1987 having been found false, proves that the petitioner was not only involved in civil litigation but was also prosecuted in a Criminal Court whereupon he was discharged. He, hence, was insulted and teased to the maximum obviously for the sole reason that he had entered into a second marriage which is permissible in Islam, is not a sin and at any rate is not a valid ground to justify the acts of the respondent No. 3, who was definitely supported by her children. Ummar Mukhtar respondent No. 4 is admittedly aged 22 years and at the time of filing of the suit for maintenance he was aged about 18 years. A specific allegation of disobedience and insult has been levelled by the petitioner against all the respondents. It is a case of appreciation of evidence and even if the argument of the learned counsel is conceded that the evidence has not been properly appreciated, no case for interference in exercise of Constitutional jurisdiction of this Court is made out. Merely because the petitioner has taken a second wife is not a sufficient ground not to allow him to enter his house and to insult him inasmuch as Islam permits four marriages. More than one wives of Holy Prophet Muhammad (peace be upon him) have been living peacefully at one and the same time. The Our'anic verses referred to by the learned counsel for the respondents also do not advance the case of the respondents. Verse No. 233 of Surah "Al‑Baqrah" though enjoins upon the father to maintain his minor children yet the right is not unconditional as they have to be maintained as per "Dastur", which could be the law of the country which is the Personal Law of the parties in this case who are Muslims, which also imposes certain obligations on the wife and the children according to which minimum requirement is to be obedient and faithful to husband. Rights and obligations are reciprocal and therefore to claim a right, obligation has also‑to be discharged.
9. Ordinarily, it is the minor child alone who is entitled to the payment of maintenance by the father, unless, of course, it is a case of an incapacitated child which is not the case in hand as respondent No. 4 is quite healthy and is aged about 22 years at present. There is no reasonable cause as to why the respondents should be disobedience to the petitioner or to adopt an insulting attitude towards him. He is husband of respondent No. 3 and father of other respondents, therefore, they have to be obedient to him. A reference to various Qur'anic verses reproduced in the upper portion of this order, their translation as well as Tafseer clearly proves that it is the Qur'anic mandate to the children to respect their father. It further transpires that whenever‑there is a mention of "Tauheed" in Holy Qur'an there is a mandate to the children to obey, serve and respect their parents. The only exceptional Command which could be disobeyed is call of the father to adopt "Kufr". Therefore, it is an established legal proposition that a wife who is living away from the husband of her own who disallows him to enter her house and refuses to perform marital obligations is not entitled to the grant of maintenance. Similarly, a disobedient major child who is not even incapacitated and hence liable to earn his livelihood cannot be allowed to claim maintenance from his father. The verses cited by the learned counsel for the respondents are not applicable to the facts and circumstances of this case inasmuch as they relatives and Muslim Ummah, except verse No. 233 of Surah "Al‑Baqra", which also does not recognize unqualified right of maintenance of the children. Case of "Muhammad Afsar" (supra) relied upon by the learned counsel also does not help the respondents inasmuch as it is one of those exceptional cases where the maintenance was allowed to incapacitated child irrespective of age. Under the prevalent law of maintenance payment whereof is governed by Muslim Personal Law, a major child is not entitled to the grant of maintenance unless his case falls within the exceptions referred to above case of Ghulam Sarwar v. District Judge and others (1985 CLC 2478) relied upon by the learned counsel for the respondents is also not applicable to the facts and circumstances of this case inasmuch as in the cited case decree for maintenance of minor children was passed which was subsequently challenged on the ground that the children have attained the puberty, hence are not entitled to claim. In such a situation, the learned Single Judge of this Court held that these objections can be raised before the Executing Court and cannot be raised in the Constitutional Jurisdiction of this Court. This judgment rather supports the view that after attaining puberty, by analogy after attaining majority by the son, the children shall not be entitled to the payment of maintenance from father. The matter in issue has been dealt with at length in case of Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75), wherein their Lordships have held that although father is liable to maintain his children irrespective of age if they are unable to earn livelihood and are getting education, yet the father is not bound to maintain the children ad infinitum, even in the aforementioned eventualities and the father had to be liable to maintain his child for the purpose of education up to a reasonable stage. In the case in hand, the petitioner is a middle class person, respondent No.4 has already completed normal education which is usually taken by middle class people, and, therefore, the stage of education at which presently he is cannot be said to be a stage in the normal course of family traditions of the petitioner, and therefore, as per law declared in the aforementioned judgment, father cannot be held responsible for maintenance of respondent No.4, who is major, even if he is getting some higher education. In case of "Ghulam Sarwar" (supra) it has been held that a Constitutional petition is not maintainable in a case rising out of a suit for maintenance where the findings of fact rendered on the basis of evidence and sound and cogent reasons, have been given in support of the decision and no statutory provisions and the case‑law laid down by the superior Courts have been violated. Similarly, in case of Leemon v. Mst. Kazbano and 2 others (PLD 1982 Karachi 449), it has been held that the High Court cannot go into the factual mass of material for purpose of determining controversial issues between the parties in exercise of writ jurisdiction as the High Court does not act as a Court of facts and cannot take upon itself duties of Family Court to decide the questions of fact exclusively determined by the said Court. Resultantly, I hold that respondent No.3 has rightly been disallowed the maintenance by the two Courts of exclusive jurisdiction and no case for interference is made out qua refusal of maintenance to her by the lower Courts. I further hold that respondent No.4 petitioner No.2 (in W.P. No. 1230/90) is also not entitled to the grant of maintenance as a disobedient. major son of the petitioner. However, respondent No.5 is held to be entitled to the payment of maintenance as learned counsel for the petitioner has not challenged this portion of the order passed by the two Courts below.
10. Regarding quantum of maintenance, I am of the. view that a house is already in possession of the plaintiffs which was given to the wife at the time of marriage for the purpose of Guzara (pocket money) as is clear from entries Nos. 16, 17 of document Exh.Dl reproduced above. An amount of Rs.500 p.m. for the present shall be sufficient to meet the needs of respondent No.5, who is aged about ten years. Even otherwise, question of maintenance is. not a subject to be gone into in exercise of the Constitutional jurisdiction of this Court, as under the changed circumstances and needs of the minor, fresh proceedings can be lodged before the Family Court, which is a Court of competent jurisdiction, hence, it cannot be said that impugned orders are illegal and without a lawful authority on that score.
Resultantly, I partly accept Writ Petition No. 1079 of 1990, declare the impugned orders as illegal and without a lawful authority and set aside the same to the extent of payment of maintenance to respondent No.4. However, rest of the order passed by the learned trial Court as modified by the learned lower Appellate Court is maintained to extent of payment of maintenance to respondent No.5 alone. Writ Petition No. 1230 of 1990 is dismissed. The parties are left to bear their own costs.
A.A./M‑1309/LOrder accordingly
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