Full Judgment Text & Judicial Ruling

2026 C L C 59 [Islamabad] Before Muhammad Azam Khan, J HINA ---Petitioner Versus ADIL SHAHZAD and others ---Respondents Writ Petition No. 1436 of 2025, decided on 7th October, 2025. (a) Family Courts Act (XXXV of 1964)--- ----Ss.5, Sched. & 17-A(2)(a)---Suit for recovery of maintenance allowance by wife and minor children---Minor needing special care---Obligation of father to maintain minor children---Quantum of maintenance, determination of---Father contracting second marriage---Effect---Financial capacity of father, consideration of---Power of family court to fix an amount of maintenance higher than the amount prayed for in the plaint---Scope---Facts in brevity were that the petitioner/wife contracted marriage with respondent/husband and from the wedlock a son was born---During her pregnancy, the respondent/husband expelled the petitioner/wife from his house and failed to provide any financial support during pregnancy or after childbirth---The petitioner filed suit for recovery of past and future maintenance for herself and the minor child, along with dowry articles and dower amount---The family court decreed partial maintenance i.e. Rs. 20,000 per month for the petitioner till the iddat period and Rs.25,000 per month for the minor till an interim order, followed by Rs. 30,000 per month with annual increment, while dismissing her claim for dowry and delivery expenses---The appellate court later reduced the maintenance by Rs.10,000/-, leading the petitioner/wife to file the present writ petition---Held: When the quantum of maintenance was examined in the context of double-digit inflation, the rising cost of living, and the specialized requirements of an autistic child, it became manifest that the sum of Rs.10,000/- reduced by the appellate court did not align with either the welfare of the minor or the established principles of law---Moreover, plea of father of having contracted second marriage and having more dependents to maintain was misconceived---Obligations arising from subsequent marriage could not operate to the detriment of children from an earlier marriage particularly where the child needed special care---Father could not absolve himself from his primary and continuous duty of maintaining such a child merely on the plea that he had additional dependents---Amount determined by the appellate court was inadequate to meet even the most basic needs of a child, much less a special child requiring continuous medical and therapeutic attention---As and when the final order was passed the amount fixed by the family court could be modified and revisited in that the quantum of maintenance could be increased or decreased after appraising, evaluating and examining the evidence produced during the trial---Thus, the mere fact that the interim maintenance was initially fixed at Rs.7000/- could not have constrained the Trial Court from enhancing the quantum of final maintenance to Rs.30,000/- due to peculiar needs of the minor who was a special child---Appellate court was directed to make a fresh determination of maintenance keeping in view the updated medical, special, educational and other living expenses of the minor---However, the assessment was to be made whilst considering the father's actual income and financial capacity which required determination through cogent evidence---Impugned order was set aside to the extent of the quantum of maintenance fixed for the minor---Constitutional petition was partially allowed, in circumstances. Murad Khan v. Mst. Humaira Qayyum 2025 SCMR 739 rel. Syeda Farhat Jahan v. Syed Iqbal Hussain Rizvi and another 2010 YLR 3275; Dr. Muhammad Jawad Jan Arif v. Dr. Ayesha Chaudhry and 2 others 2022 CLC 89 and Syed Zain Muntazar Mehdi v. Mst. Sara Naqvi 2024 CLC 1580 ref. (b) Family Courts Act (XXXV of 1964)--- ----S.5, Sched.---Maintenance allowance for minor children---Minor with special needs---Obligation of father to maintain his minor children---Scope---A father is not only under a legal obligation but it is also his moral and religious duty to maintain his children---This obligation is firmly rooted in the injunctions of the Holy Qur'an, which in Surah Al-Baqarah declares, "And clothing and maintenance must be borne by the father in a fair manner." [Al-Baqarah: 233]---The dictate of the Qur'an, therefore, places upon the father a continuous responsibility to provide sustenance, clothing, education, and medical care to his children in a just and equitable manner, commensurate with his means and status---This duty becomes even more accentuated where the child requires special care---Any attempt to dilute or evade such responsibility would be contrary not only to the law of the land but also to the spirit of Shariah, which emphasizes compassion, fairness, and protection of the vulnerable---Father is under a legal and moral obligation to maintain his children---The concept of maintenance is not confined merely to food and shelter; rather, it encompasses all necessary expenses relating to education, clothing, medical treatment, transportation, and recreational activities, so as to enable the child to live a life of dignity consistent with the status of his father. Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel. (c) Family Courts Act (XXXV of 1964)--- ----Ss.5, Sched. & 17A(4)---Maintenance allowance for minor children---Minor requiring special needs---Obligation of father---Quantum of maintenance---Determination---Factors to considered---Scope---Quantum of maintenance requires due consideration of all factors on the basis of which the court can determine the actual need of the minor---In this regard, it is important for the court to first determine the expenses incurred or likely to be incurred on the minors---For this purpose the court must look into the living conditions of the minor and the manner and means by which the mother is maintaining the minors which will include factors like where they reside, whether the mother is dependent upon her family, if so what is the income on the basis of which the minor is also being cared, whether she has a job and whether she has any source of independent income---Special needs of the minor which will include medical or physical needs or special educational needs should also be seen---Special needs will vary from case to case, if relevant, as it is unique to the situation and individual---Yet for the purpose of maintenance it is the obligation of the father to fulfill these special needs---In the case of enhancement, the court must also determine as to what extent the maintenance already fixed meets the requirement and expenses of the minor and for what purpose, further enhancement is required---At the same time the court must determine the income of the father either through proper documentary evidence or on the basis of the social status and earning capacity of the father---In order to ensure that proper information is before the court, it may always require the father to produce documents such as his salary slips or any bank statement or property document on the basis of which he is able to show his monthly income or earning or his financial status---In this regard, the assets owned by the father are relevant as it contributes towards establishing the financial status of the father that has to be probed into by the court and based on attending circumstances the court can conclusively establish the means through which the father will be able to maintain the minors---It is also important to take into consideration any liability of the father, that is whether he is paying any bank loan or debt, whether he has remarried or has other children or whether his parents are dependent on him---In this way the court can determine the manner in which the income of the father is spent and balance the income and capacity with the reasonable requirements of the minors seeking maintenance---In this regard, it is noted that S.17(A) of the Family Courts Act, 1964 specifically provides in subsection (4) that for the purposes of fixing maintenance, the court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant---The purpose of this provision is to facilitate the court to determine the financial position of the father---The court therefore is not dependent on documents or information provided by the father and can call for relevant documents or information be it from the relevant department or organization or as the case requires, in order to determine the income of the father. Nazia Bibi and others v. Additional District Judge, Ferozewala and others PLD 2018 Lahore 916 ref. (d) Family Courts Act (XXXV of 1964)--- ----S.17-A(2)(a)---Power of family court to fix an amount of maintenance higher than the amount prayed for in the plaint---Scope---Family court is empowered to fix an amount of maintenance higher than the amount prayed for in the plaint or higher than what was fixed as interim maintenance, having regard to the afflux of time or other relevant circumstances. Ms. Hajira Zakir Shah and Ms. Sana Liaqat for Petitioner. Sardar Muhammad Nasir Khan along with the Respondent No. 1. Date of hearing: 16th November, 2025. JUDGMENT MUHAMMAD AZAM KHAN, J.---Through the instant Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") the Petitioner [Hina] has challenged the order dated 21.12.2024 ("Impugned Order") passed by the learned Additional District Judge-I, Islamabad-East ("Appellate Court") and the Judgment and Decree dated 09.03.2024 ("Impugned Judgment and Decree") passed by the learned Family Judge, Islamabad-East ("Family Court"). 2. The brief facts of the case in hand are that the Petitioner and the Respondent No. 1 contracted marriage on 09.12.2016 according to Shariah Muhammadi against a dower of Rs.200,000/-. The Respondent No. 1's as well as his family's attitude towards the Petitioner remained cruel from the very first day of marriage. In March 2017, the Respondent No. 1, during the pregnancy of the Petitioner, threw her out of his home, which left the Petitioner with no choice but to live with her mother. From the wedlock, a baby boy, namely Abu Bakar, was born on 19.09.2017. The Respondent No. 1 did not pay a single penny during the pregnancy period or at the time of the birth of the baby, and Rs.50,000/- were spent by the parents of the Petitioner at the time of delivery. Later on, the Respondent No. 1 sent a divorce deed on 08.08.2018, pronouncing divorce to the Petitioner. Despite repeated requests by the Petitioner, the Respondent No. 1 refused to pay maintenance to the Petitioner, hence, she filed a suit for recovery of past and future maintenance with the prayer as under:- i. A decree for the recovery of maintenance allowance of the Plaintiff No.1 @ Rs.25,000/- per month from March 2017 till the end of Iddat period. ii. A decree for the recovery of maintenance allowance of the Plaintiff No.2 @ Rs.35,000/- per month from his date of birth 19.09.2017 including delivery expense of Rs.50,000/- and future maintenance till completion of education with yearly enhancement as per inflation, educational, medical, lodging requirements. 3. The Petitioner also filed a suit for recovery of dowry articles given by her parents and dower amount/gold ornaments. Both the suits were consolidated vide order dated 06.02.2020, and consolidated issues were framed by the Family Court. After recording of evidence, the learned Family Court vide the Impugned consolidated Judgment and Decree, partially decreed both the suits in the following manner:- "In nutshell in the light of the findings on issues Nos. 1 to 3, both suits of the plaintiffs is partially decreed in their favour. Plaintiff No.1 is held entitled for maintenance at the rate of Rs.20,000/- per month from date of desertion i.e. August, 2018 till the iddat period, and plaintiff No.2 is also entitled to recover past maintenance at the rate of Rs.25,000/- per month from August, 2018 till interim order dated 09.01.2020, and future maintenance at the rate of Rs.30,000/- per month from disposal of the instant suit till his legal entitlement as he is special child, as per his psyciological condition along with 10% increment per annum, same shall start from March, 2025. Additionally, the father shall reimburse all past expenditures and other medical expenses incurred by plaintiff No.1 on the minor child as per Ex.P2 to Ex.P4 and Ex-P6, totaling amount of Rs.654,885/-. This amount shall be paid within three months from the date of this judgment. Furthermore, plaintiff No.2 is entitled for his medical expenses from his father/defendant, the defendant is legally and morally as per sharia liable to bear all medical expenses of the child and get his treatment from Shifa medical hospital (hospital suggested by the defendant himself) and also provide all medication as required, said medical expenses are separate from maintenance as allowed. If the defendant failed to register minor's name on his medical panel at Shifa International Hospital as suggested by himself, in said case he shall be liable to pay medical expenses of minor @ Rs.30,000/- per month to the plaintiff No.1. Claim of plaintiff No.1 for recovery of delivery expenses and dower/gold 4 tolas stand dismissed." 4. Being aggrieved by the Impugned Judgment and Decree, the Respondent No. 1 filed Appeal before the learned Appellate Court seeking modification in the Impugned Judgment and Decree with the following prayer:- "In the above circumstances, it is therefore, respectfully prayed that the appeal may kindly be accepted, the impugned consolidated judgment and decree dated 09.03.2024 being devoid of any merit be modified by reasonably decreasing the rates of maintenance allowances of the respondents and to set aside the remaining decree to the extent of suit No. 233 in the best interest of justice." The learned Appellate Court, after hearing arguments of learned counsel for the parties, vide the Impugned Order, partially allowed the appeal. Being aggrieved by the Impugned Order passed by the learned Appellate Court and the Impugned Judgment and Decree passed by the learned Family Court, the Petitioner has filed the instant Petition, with the prayer as under:- "It is most humbly prayed that the instant writ petition may graciously be accepted, her due right of recovery of dower amount, quantum of maintenance to the child may be increased in the best interest of justice." 5. The learned counsel for the Petitioner contended that the Impugned Order of the learned Appellate Court and the Judgment and Decree of the learned Family Court are passed without considering the facts, evidence and record present on file and thus reached at a wrong conclusion; that the maintenance awarded is insufficient to cover the minor's basic needs; that the Impugned Judgment and Decree as well as the Impugned Order are arbitrary, unreasoned, and based on presumptions, leading to miscarriage of justice and are therefore liable to be set aside. Lastly, the learned counsel prayed for acceptance of the instant Writ Petition and setting aside the Impugned Order and Impugned Judgment and Decree. 6. On the other hand, the learned counsel on behalf of the Respondent No. 1 argued that the learned Appellate Court has passed a well-reasoned order keeping in view the facts and evidence available on record; and that the learned counsel for the Petitioner has failed to point out any illegality or irregularity in the Impugned Order passed by the learned Appellate Court. In the last, the learned counsel prayed for the dismissal of the instant Petition. 7. I have heard the learned counsel for the parties and have also perused the record with their able assistance. 8. It is an admitted fact on record that the minor/Respondent No. 3 is a special child, diagnosed with autism, who requires constant supervision, specialized medical treatment, therapy sessions, and educational arrangements tailored to his condition. The learned Family Court, while appreciating the peculiar circumstances of the case, fixed his future maintenance at Rs.30,000/- per month along with annual increment, keeping in view the special needs of the minor as well as the financial status of the Respondent No. 1. The learned Appellate Court, however, without fully adverting to the requirements of a special child and the impact of prevailing inflation, drastically reduced the future maintenance to Rs.10,000/- per month. It is also pertinent to underscore that under Islamic law, a father is not only under a legal obligation but it is also his moral and religious duty to maintain his children. This obligation is firmly rooted in the injunctions of the Holy Qur'an, which in Surah Al-Baqarah declares: "And clothing and maintenance must be borne by the father in a fair manner." [Al-Baqarah: 233]. The dictate of the Qur'an, therefore, places upon the father a continuous responsibility to provide sustenance, clothing, education, and medical care to his children in a just and equitable manner, commensurate with his means and status. This duty becomes even more accentuated where the child requires special care, as in the case at hand. Any attempt to dilute or evade such responsibility would be contrary not only to the law of the land but also to the spirit of Shariah, which emphasizes compassion, fairness, and protection of the vulnerable. 9. The jurisprudence developed by the superior Courts of this country, as well as the principles of Muhammadan Law, clearly lay down that the father is under a legal and moral obligation to maintain his children. The concept of maintenance is not confined merely to food and shelter; rather, it encompasses all necessary expenses relating to education, clothing, medical treatment, transportation, and recreational activities, so as to enable the child to live a life of dignity consistent with the status of his father. Reliance in this regard is placed on the case titled "Humayun Hassan v. Arslan Humayun and another" (PLD 2013 Supreme Court 557), wherein the august Supreme Court of Pakistan observed the following:- "4. Heard. There can be no cavil with the proposition that the maintenance issue(s), 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. In this context, according to section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. 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; but obviously corresponding to and commensurating with the means and the capacity of the father to pay." In the present case, when the quantum of maintenance is examined in the context of double-digit inflation, the rising cost of living, and the specialized requirements of an autistic child, it becomes manifest that the sum of Rs.10,000/- fixed by the learned Appellate Court does not align with either the welfare of the minor or the established principles of law. 10. It is also borne out from the record that the Respondent No. 1 has contracted a second marriage and has two children from that wedlock, who are equally dependent upon him for support and sustenance. This fact cannot be ignored, as the Respondent No.1 indeed shoulders multiple responsibilities within his family. In the case titled "Nazia Bibi and others v. Additional District Judge, Ferozewala and others" (PLD 2018 Lahore 916), the Lahore High Court observed the following qua the factors to be considered whilst determining the quantum of maintenance:- "9. Quantum of maintenance requires due consideration of all factors on the basis of which the court can determine the actual need of the minor. In this regard, it is important for the court to first determine the expenses incurred or likely to be incurred on the minors. For this purpose the court must look into the living conditions of the minor and the manner and means by which the mother is maintaining the minors which will include factors like where they reside, whether the mother is dependent upon her family, if so what is the income on the basis of which the minor is also being cared whether she has a job and whether she has any source of independent income. Special needs of the minor which will include medical or physical needs or special educational needs should also be seen. Special needs will vary from case to case, if relevant, as it is unique to the situation and individual. Yet for the purpose of maintenance it is the obligation of the father to fulfill these special needs. In the case of enhancement, the court must also determine as to what extent the maintenance already fixed meets the requirement and expenses of the minor and for what purpose, further enhancement is required. At the same time the court must determine the income of the father either through proper documentary evidence or on the basis of the social status and earning capacity of the father. In order to ensure that proper information is before the court, it may always require the father to produce documents such as his salary slips or any bank statement or property document on the basis of which he is able to show his monthly income or earning or his financial status. In this regard, the assets owned by the father are relevant as it contributes towards establishing the financial status of the father that has to be probed into by the court and based on attending circumstances the court can conclusively establish the means through which the father will be able to maintain the minors. It is also important to take into consideration any liability of the father, that is whether he is paying any bank loan or debt, whether he has remarried or has other children or whether his parents are dependent on him. In this way the court can determine the manner in which the income of the father is spent and balance the income and capacity with the reasonable requirements of the minors seeking maintenance. 10. In this regard, it is noted that Section 17(A) of the West Pakistan Family Courts Act, 1964 specifically provides in subsection (4) that for the purposes of fixing maintenance, the court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant. The purpose of this provision is to facilitate the court to determine the financial position of the father. The court therefore is not dependent on documents or information provided by the father and can call for relevant documents or information be it from the relevant department or organization or as the case requires, in order to determine the income of the father." (Emphasis Added) 11. However, the obligations arising from a subsequent marriage cannot operate to the detriment of children from an earlier marriage, particularly where the child needs special care. The father cannot absolve himself from his primary and continuous duty of maintaining such a child merely on the plea that he has additional dependents. Reliance is placed on a case titled "Syeda Farhat Jahan v. Syed Iqbal Hussain Rizvi and another" (2010 YLR 3275), wherein the Court stated the following:- "it is the legal and moral duty of the father of minor children to keep maintaining them he being the natural guardian till they attain the age of majority. No excuse, big or small can absolve the father from his duty of maintaining his minor children which duty has been ordained on him through divine revelation of Allah Almighty." (Emphasis Added) The law, therefore, places the welfare of the minor at the highest pedestal, and any interpretation which deprives a special child of the care and assistance he deserves would amount to a miscarriage of justice. This Court, thus, is constrained to observe that the said amount is wholly inadequate to meet even the most basic needs of a child, much less a special child requiring continuous medical and therapeutic attention. 12. It is also of significance to note that the reduction of maintenance by the learned Appellate Court on the ground that the Trial Court enhanced the quantum of maintenance "all of a sudden" is not borne out from the statutory framework. The relevant portion from the Impugned Order is reproduced hereunder:- "7. Perusal of record reveals that initially the Trial Court had fixed interim maintenance of the minor @ Rs.7,000/- per month i.e, w.e.f 09.01.2020 till…

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