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Official Citation: 2024 LHC 2111
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-04-22
Parties: Muhammad Maroof And Others vs Mst. Mariam Farooq and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-04-22, officially reported as 2024 LHC 2111. In this matter between Muhammad Maroof And Others and Mst. Mariam Farooq and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC2111
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title: Muhammad Maroof And Others vs Mst. Mariam Farooq and others Case No.: Writ Petition No.50 Of 2024 Date of Judgment:2024-04-22 Reported As: 2024 LHC 2111 Result: Petition Dismissed
JUDGMENT
JUDGMENT MIRZA VIQAS RAUF, J. The petitioners are the paternal uncles of respondent No.2 (hereinafter referred to as "respondent"), who alongwith his mother respondent No.1 instituted a suit for recovery of maintenance allowance, dowry articles, gold ornaments, currency in the form of Euro, documents and in alternate price of Rs.28,77,400/-, impleading the petitioners (uncles) and Muhammad Bashir (grandfather) in the array of defendants with the averments that respondent No.1 was married with Muhammad Farooq Ahmad on 18th December, 2015, who was son of Muhammad Bashir and brother of the petitioners. It is asserted that during subsistence of marriage, the "respondent" was born on 12th July, 2017, however, Muhammad Farooq Ahmad took his last breath on 17th September, 2021. It would not be out of place to mention here that Muhammad Bashir (grandfather) also passed away during the proceedings before the Family Court. The suit was resisted by the petitioners, who submitted their joint written statement. From the divergent pleadings of the parties, multiple issues were framed and ultimately, the suit was decreed by way of judgment dated 05th June, 2023. Feeling dissatisfied, the petitioners preferred an appeal before the learned District Judge, Jhelum, whereas, the "respondent" also challenged the judgment and decree of the Family Court through a separate appeal, however, both the appeals were dismissed by way of consolidated judgment dated 01st November, 2023, hence this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. 2. Learned counsel for the petitioners submitted that being paternal uncles, the petitioners cannot be made liable to pay maintenance to "respondent" especially when respondent No.1 being mother is alive. It is contended that in terms of Paragraph 370 of D.F. Mulla's Principles of Muhammadan Law in absence of father, the primary liability to pay maintenance to the minor
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child lies upon the mother and grandfather. Learned counsel emphasized that the concurrent findings burdening the petitioners to pay maintenance to "respondent" are not tenable under the law. 3. Conversely, learned counsel for the "respondent" submitted that the petitioners, being uncles of the minor child, are bound to maintain her. He added that the petitioners are deriving benefits from the property left by their deceased father in which minor has also her legal share. It is contended that petitioners are liable to pay maintenance to the minor and as such impugned judgments are unexceptionable. In order to supplement his contentions, learned counsel has placed reliance on TAHIR MAHMOOD versus ADDITIONAL DISTRICT JUDGE, BUREWALA and others (PLJ 2024 Lahore (Note) 19), Mst. FARIDA BIBI and others versus JUDGE FAMILY COURT and others (2024 MLD 145), HASSAN AHMAD KHAN KANWAR and others versus ADNAN HASSAN and others (2020 CLC 1701), UMER DARAZ versus FAMILY JUDGE and 3 others (2018 CLC 1786) and ABDUL MAJEED versus ADDITIONAL DISTRICT JUDGE FAISALABAD and 4 others (PLD 2012 Lahore 445). 4. This petition was admitted for regular hearing by way of order dated 12th January, 2024, however, keeping in view the importance of the matter in issue, M/s Imran Hassan Ali and Agha Muhammad Ali, Advocates were appointed as amici curiae to assist the Court by way of order dated 05th March, 2024. 5. Mr. Imran Hassan Ali, Advocate, while making reference to Surah al-Baqarah submitted that the petitioners cannot claim immunity from paying maintenance to their niece. It is added that as per famous religious scholars, it is persistent view that in absence of father, responsibility of maintaining the minor child shifts upon his close relatives, including the uncles. It is contended that in terms of principles reiterated in Fatawa-e-Alamgiri, when a person dies leaving property and young children, their maintenance is to be taken out of their shares in the estate. Learned counsel contended that the minor is daughter of Muhammad Farooq Ahmad, who is deceased son of Muhammad Bashir and as such she is entitled to get share of his father from the estate left by her grandfather. 6. On the other hand, Agha Muhammad Ali, Advocate submitted that it is admitted position on the record that in his lifetime, Muhammad Bashir (grandfather) was paying interim maintenance to the minor till his death. He added that both the courts were justified to award maintenance to the minor. Learned amicus, in support of his contentions, also made reference to Surah Al-Imran and placed reliance on the law laid down in HAJI NIZAM KHAN versus ADDITIONAL DISTRICT JUDGE, LAYYALPUR and other (PLD 1976 Lahore 930), ABDUL MAJEED versus ADDITIONAL DISTRICT JUDGE and others (PLD 2012 Lahore 445) and GHAFOOR AHMED BUTT versus Mst. IRUM BUTT (PLD 2011 Lahore 610). 7. Arguments heard, record perused. 8. Though suit was instituted for multiple claims but now the parties are in contest only to the extent of issue of maintenance. Before making any deliberation on the moot point involved in this petition it would be advantageous to observe that there are certain admitted facts which cannot be kept aside while pondering upon the core issue. 9. Muhammad Farooq Ahmad, husband of respondent No.1 and father of the "respondent" was son of Muhammad Bashir and brother of the petitioners. He took his last breath on 17th September, 2021. After his death, suit was instituted by the respondents arraying Muhammad Bashir (grandfather) and petitioners (uncles) in the array of defendants. Muhammad Bashir (grandfather) passed away during pendency of the suit, who was paying the interim maintenance allowance in terms of order of the learned Judge Family Court. Muhammad Bashir left the property in the shape of two houses and agricultural land, which certainly has to devolve upon the petitioners as his sons and the "respondent", which is in possession of petitioners and they are deriving benefits therefrom. Parties are admittedly Muslim and observing Hanafi faith. Even
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otherwise, there is general presumption that all the Muslims in Pakistan are presumed to be governed by Hanafi Fiqa unless proved otherwise. Reference to this effect can be made to SHER MUHAMMAD and others versus Mst. FATIMA and others (2016 MLD 185), Mst. RASHIDAN BIBI through Legal Heirs versus Mst. JANTARY BIBI through Legal Heirs and 2 others (2005 MLD 1202), Mst. SARDAR BIBI versus MUHAMMAD BASHSH and others (PLD 1954 Lahore 480) and NUR ALI and another versus MALKA SULTANA and others (PLD 1961 (W.P.) Lahore 431). 10. Above all being the Muslims, the parties to the lis are to be governed by the Quranic injunctions. To this effect Surah 2 Al-Baqarah, Ayat 233 is very pertinent for the resolution of matter in issue, which reads as under:- {{ARABIC TEXT}} "(2:233) If they (i.e. the fathers) wish that the period of suckling for their children be completed, mothers may suckle their children for two whole years. (In such a case) it is incumbent upon him who has begotten the child to provide them (i.e. divorced women) their sustenance and clothing in a fair manner. But none shall be burdened with more than he is able to bear; neither shall a mother suffer because of her child nor shall the father be made to suffer because he has begotten him. The same duty towards the suckling mother rests upon the heir as upon him (i.e. the father). And if both (the parents) decide, by mutual consent and consultation, to wean the child, there is no blame on them; if you decide to have other women suckle your children there is no blame upon you, provided you hand over its compensation in a fair manner. Fear Allah and know well that Allah sees all that you do." 11. The theme of above Ayat of Surah Al-Baqarah is explained by various religious scholars in their own words. Some of which are as under:- "Divorced mothers will breastfeed their offspring for two whole years, for those who wish to complete the nursing of their child. The child's father will provide reasonable maintenance and clothing for the mother during that period. No one will be charged with more than they can bear. No mother or father should be made to suffer for their child. The father's heirs are under the same obligation. But if both sides decide--after mutual consultation and consent--to wean a child, then there is no blame on them. If you decide to have your children nursed by a wet-nurse, it is permissible as long as you pay fairly. Be mindful of Allah, and know that Allah is All-Seeing of what you do." (Dr. Mustafa Khattab, The Clear Quran) "Mothers may nurse [i.e., breastfeed] their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is their [i.e., the mothers'] provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father's] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear All h and know that All h is Seeing of what you do." (Saheeh International) "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 in a seemly manner is upon the father of the child. No-one should be charged beyond his 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
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them; and if ye wish to give your children out to nurse, it is no sin for you, provide 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." (M. Pickthall) "The mothers shall give such to their offspring for two whole years, if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be Treated unfairly on account of her child. Nor father on account of his child, an heir shall be chargeable in the same way. If they both decide on weaning, by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster-mother for your offspring, there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms. But fear Allah and know that Allah sees well what ye do." (A. Yusuf Ali) {{URDU TEXT}} [Ahmed Raza Khan Barailvi (Kinz-ul-Iman)] {{URDU TEXT}} [Syed Abu Ali Maududi (Tafheem-e-Qur'an)] {{URDU TEXT}} (Maulana Muhammad Junagarhi) {{URDU TEXT}} (Maulana Amin Ahsan Islahi) (Tadabbur-e-Qura'an) {{URDU TEXT}} (Maulana Wahiduddin Khan) "Mothers (should) suckle their children for two full years, for one who wants to complete the (period of) suckling. It is the obligation of the one to whom the child belongs that he provides food and clothing for them (the mothers) with fairness. Nobody is obligated beyond his capacity. No mother shall be made to suffer on account of her child, nor the man to whom the child belongs, on account of his child. Likewise responsibility (of suckling) lies on the (one who may become an) heir (of the child). Now, if they want to wean, with mutual consent and consultation, there is no sin on them. And If you want to get your children suckled (by a wet-nurse), there is no sin on you when you pay off what you are to give with fairness, and fear Allah, and be assured that Allah is watchful of what you do." (Taqi Usmani) {{URDU TEXT}} (Fatah Muhammad Jalandhari) {{URDU TEXT}} (Shaykh al-Hind Mahmud al-Hasan) (Tafsir-e Usmani) 12. There is since no codified law in Pakistan dealing with the issue in hand, so for the purpose of clarification, dissimilar opinions of the famous jurists can also be taken note of. To this effect reference can be made to Badai Al Sanai Fi Tartib Al Sharai by Imam Ala-ud-Din Al Kasani. The following excerpts from the translation by Hafiz Muhammad Saadullah, published by Research Cell, Dyal Singh Trust Library, Lahore (1993), Volume 4, are most relevant:- {{URDU TEXT}} 13. Second of the series is Al Hidayah fi Sharh Bidayat al-Mubtadi by Burhan-ud-Din al-Farghani al-Marghinani, which is one of the most influential books of Hanafi jurisprudence. Following excerpts from its translation by Imran Ahsan Khan Nyazee (2015) are most relevant:- "Maintenance is due for each relative within the prohibited degree of marriage if such relative is a poor minor, or is a poor major woman or is a major male who is poor and has a chronic illness or is
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blind. The reason is that maintaining the bond of the womb is obligatory in the case of close relatives and not distant relatives, and the distinguishing factor is that they be in the prohibited degree of marriage. Allah, the Exalted, has said, "An heir shall be chargeable in the same way." In the recitation of Abd Allah ibn Mas'ud (God be pleased with him), "An heir within the prohibited degree of marriage shall be chargeable in the same way." Thereafter, it is necessary that attributes like need, minority, and being a female be found. Chronic illness and blindness are signs of need due to the existence of the inability." "The share of maintenance is in proportion to the share of inheritance and the person will be compelled to pay it. The reason is that mentioning the heir in the text is an indication for considering the (share in) inheritance. Further, liability is in proportion to revenue, while compelling is for the satisfaction of the right of one to whom it is due." "Maintenance is not obligatory on the poor man, because it is made obligatory for strengthening the bonds of the womb and he is entitled to it himself so how can the obligation be demanded from him? This is distinguished from the maintenance of the wife and his minor child, because he made it binding upon himself by going ahead with the contract, because interests are not secured without it, and in such a case difficult financial straits do not operate. Thereafter, financial ease is determined on the basis of the nisab, according to what is narrated from [Imam] Abu Yusuf (God bless him). According to [Imam] Muhammad (God bless him), it is determined by what is in excess of maintenance for himself and his family for a month or by what is surplus over this through his permanent and daily earning. The reason is that what is taken into account in the case of the rights of individuals is the ability and not the nisab, as that is for financial ease. The fatwa today is on the first view where the nisab is the nisab that prevents sadaqah (payment of zakat)." (Underlining supplied for emphasis) 14. Similarly, Durr Al Mukhtar by Allama Ala-ud-Din Haskafi, which is 17th century book on Islamic jurisprudence and is considered to be an authoritative work on the subject also sheds light on the subject in the following words:- {{URDU TEXT}} (Underlining supplied for emphasis) 15. Reference to this effect can also be made to Fatawa-e-Alamgiri which is 17th century CE compendium of rulings on different subjects of Islamic jurisprudence. It served as a legal code in the late Mughal era in the sub-continent. The following excerpts are from the translation by Maulana Syed Ameer Ali: {{URDU TEXT}} {{URDU TEXT}} (Underlining supplied for emphasis) 16. Then comes Neil B.E. Baillie, who in his book 'A Digest of Muhammadan Law' has summarised the doctrines of Hanafi code of jurisprudence, in following words: "If a man who is in straitened circumstances, and has a young child, is able to earn anything for its maintenance, it is incumbent on him to do so, and if he refuses, he may be imprisoned. Though he should be able to earn anything, the judge is still to decree maintenance against them, and to direct the mother to borrow for it on her husband's credit, and when he is an easier circumstance, she may have recourse against him for it. In like manner, when the father is able, but refuses. and the judge has decreed the maintenance of a child against them, or when, after decree against him, he abandons the child without leaving the means of subsistence, and the mother incurs debt for its maintenance under the direction of the judge, she may have recourse to her husband for it, and the father maybe imprisoned for the maintenance of the child." "And, in like manner, if the child's mother be rich ..., while its father is poor, she may be ordered to maintain the child, and the maintenance will be a debt against the father if he be not infirm, but, if
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he be so, he is not liable." "When a person has died leaving property and young children, their maintenance is to be taken out of their shares in the estate." "By easiness of circumstances is to be understood the possession of property equal to a nisab, according to Abu Yousuf, whose opinion has been adopted for the fatwa. And the nisab in question is that the possession of which forbids the acceptance of alms, or, in other words, a surplus of 200 dirhams over one's on necessities." "Every relative within the prohibited degrees is entitled to maintenance, provided that, if a male, he is either a child and poor, or, if adult, that he is infirm or blind and poor, and if a female, that she is poor whether a child or adult. The liability of a person to maintain these relatives is in proportion to his share in their inheritance, not (of course) his actual share, for no one can have any share in the inheritance of another till after his death, but his capacity to inherit. And this rule is applicable only among persons who are equal in respect of propinquity. No adult male, if in health, is entitled to maintenance though he is poor; but a person is obliged to maintain his adult female relatives though in health of body, if they require it. The maintenance of a mere relative is not incumbent on any poor person; contrary to the maintenance of a wife and child, for whom poor and rich are equally liable." "If he has a mother and grandfather, they are both liable in proportion to their shares as heirs, that is, the mother in one third, and the grandfather in two thirds. So also, when with the mother there is a full brother, or the son of a full brother, or a full paternal uncle, or any other of the asubah or residuaries, the maintenance is on them by thirds according to the rules of inheritance." "... when a person who takes the whole of the inheritance is in straitened circumstances, his inability is the same as death, and being as it were dead, the maintenance is cast on the remaining relatives in the same proportions as they would be entitled to in the inheritance of the person to be maintained, if the other were not in existence; and that when one who takes only a part of the inheritance is in straitened circumstances, he is not to be treated as if he were dead, and the maintenance is cast on the others, according to the shares of the inheritance to which they would be entitled if they should succeed together with him." (Underlining supplied for emphasis) 17. The most cited book before the Courts in Pakistan is D.F. Mulla's, principles of Muhammadan Law, upon which the learned counsel for the petitioners though has also relied heavily but it cannot be equated with statute book as main sources of Sharia are Holy Quran, Sunnah, Ijma and Qias. The significance and relevance of Muhammadan Law by D.F. Mulla came under discussion in the case of KHALIDA SHAMIM AKHTAR versus GHULAM JAFFAR and other (PLD 2016 Lahore 865) and it was held as under:- "6. The Quranic Command, as reflected here-in-above, in Verse No.12 of Surah Nisa has completely been ignored in the case, in hand, rather a totally contrary view is being preferred. The main sources of Shariat are; Holy Qur'an, Sunnah, Ijma and Qias and the Hon'ble Federal Shariat Court in case titled "Muhammad Nasrullah Khan v. The Federation of Pakistan and another" (Shariat Petition No.06/I of 2013) has held that, if something in any Book is proved to be different from Quran and Sunnah, that would be invalid. Muhammadan Law by D.F.Mulla, not only in the present case, but other cases also is oftenly quoted for a reference. The Hon'ble Federal Shariat Court, in the referred judgment, has held that, said law is in fact only a reference book and not a statutory law applicable in Pakistan, in the sense that the legislature has not enacted the same. It is just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book, at times, and that too casually in some matters only. Moreover, the rules quoted in Muhammadan Law are not at all applicable, if in the opinion of the Court, they are found opposed to justice, equity and good
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conscience. These rules are not even referred to in situations directly covered by the Holy Quran or Sunnah or by binding Ijma and Qias." Reference to the above effect can also be made to Messrs NAJAAT WELFARE FOUNDATION through General Secretary versus FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Parliamentary Affairs Islamabad and 4 others (PLD 2021 Federal Shariat Court 1). Relevance extract from the same is reproduced hereunder:- "9. The book titled, The Principles of Muhammadan Law by D.F Mulla, first published in 1905, was and one of the most popular books among this class and category of legal literature but it was not the only one. Some other notable books which were compiled or written before it and some after it were equally used by the courts and academia. Some of these are as follows: Faiz Badrudin Tyabji, Principles of Muhammadan Law: An Essay at a Complete Statement of the Personal Law Applicable to Muslims in British India, Butterworth, 1919. 2. Sir Roland Knyvet Wilson, Anglo-Muhammadan Law: A Digest Preceded by a Historical and Descriptive Introduction of the Special Rules now Applicable to Muhammadans as Such by the Civil Courts of British India: with Full References to Modern and Ancient Authorities., W. Thacker and Company, 1903. 3. Shama Churun Sircar, The Muhammadan Law: Being a Digest of the Law Applicable Especially to the Sunnis of India, Thacker, 1873. 4. Roland Knyvet Wilson, An Introduction to the Study of Anglo-Muhammadan Law, 1894. 5. Faiz Hassan Badrudin Tyabji, Muhammadan Law: The Personal Law of Muslims, 1940. 6. Mr. Justice Abdur Rahim, The Principles of Muhammadan Jurisprudence , Madras 1911. 7. Syed Ameer Ali Muhammadan Law, 2 volumes Calcutta 1892. 8. Neil B.E. Baillie, A Digest of Moohamadan Law (chiefly translation from Fatawa Alamgiri) 2 Volumes 1874. 9. Sir W.H. Macnaghten, Principles and Precedents of Moohammadan Law, Calcutta 1825. 10. Sir R.K. Wilson An Introduction to the Study of Anglo-Muhammadan Law, 1894. 11. Sir William Jones Al Sirajiyyah or the Muhammadan Law of Inheritance Culcutta 1792.
There are many books which are normally included in "the Anglo-Muhammadan Law" classification, above mentioned are some famous books which are commonly used for easy reference even today. All those translators and compilers of legal manuals or books were deeply entrenched in the colonial system, being either imperial and colonial officials or members of the legal elite of Colonial India. For example, W.H. Macnaghten was a court registrar in the service of the East India Company in Bengal, N.E. Baillie was the Assistant Secretary to the Indian Law Commission and an attorney to the Supreme Court of Judicature at Fort William in Bengal, Syed Ameer Ali was a lawyer and judge in Calcutta, while Faiz Badruddin Tyabji was a lawyer and judge in Bombay and D.F. Mulla was lawyer in Bombay. Some of the authors of the Anglo Muhammadan literature were Muslims but they were not trained in the Islamic legal tradition, having been educated in England or at the very least, subject to an English legal syllabus. Their efforts coincided with the overall efforts of the British colonial masters of that time to appease the Muslim subjects of the sub-continent. Although translators sometimes clearly stated that the texts were actually commentaries on law. Such as Neil B.E. Baillie's "A Digest of Moohammadan Law". Despite such acknowledgements these legal texts…
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