Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUKHTARUL HASSAN SIDDIOUI VS Respondent: JUDGE FAMILY COURT, RAWALPINDI And 4 JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title:MUKHTARUL HASSAN SIDDIOUI vs JUDGE FAMILY COURT, RAWALPINDI And 4
JUDGMENT
Reported As: 1994 CLC 1216 Result: Order accordingly Judgment 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 wed--lock 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. Umar 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.
---
## Page 2
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 Umar 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 No, 4 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
---
## Page 3
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 ul 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 Qur'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, for which thou honest, 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 for them 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." .
---
## Page 4
(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.
---
## Page 5
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 along with Kafirs. According to the learned counsel, similarly a disobedient wife of Hazrat Loot, had to die along with 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
---
## Page 6
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 along with 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
---
## Page 7
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…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.