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Petitioner: Haji NIZAM KHAN VS Respondent: ADDITIONAL DISTRICT JUDGE, LYALLPUR AND Other
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah Title: Haji NIZAM KHAN vs ADDITIONAL DISTRICT JUDGE, LYALLPUR AND Other Case No.:Civil Appeal No. K-39 of 1965 Writ Petition No. 1257 of 1968 Petition No. K-3 of
JUDGMENT
Reported As: PLD 1976 Lahore 930 Result: Petition dismissed Judgment JUDGMENT This writ petition arises out of proceedings before a Family Court wherein respondents Nos. 3 to 6, the minor children of a deceased son of the petitioner, have claimed maintenance from their grandfather, i.e., the petitioner, on the basis of a rule of Muslim Law to the effect that in case of father and mother being incapable of maintaining the children, it is the obligation of the grandfather to mantain them provided he is in easy circumstances. Before the learned Family Court the petitioner (defendant) pleaded that the suit by the minors for their maintenance against the grandfather was incompetent as "no statutory duty is cast on a person to maintain the widow and the children of his deceased son". The learned Senior Civil Judge, Lyallpur acting as Family Court rejected the petitioner's plea and held as follows: "The parties are Muslims and they are governed by Shariat in their family relations as provided in section 2 of the West Pakistain Muslim Personal Law (Shariat) Application Act V of 1962. The Principle of Muhammadan Law as laid down in paragraph No. 370 mentioned above has not been excluded either expressly or by implication by any legislative enactment and, therefore, it applies to this case according to paragraph 4 of the Principles of Muhammadan Law by Mulls." The petitioner filed an appeal against the above decision under section 14 of the West Pakistan Family Courts Act. 1964, which was dismissed by a learned Additional District Judge. The contentions raised on behalf of the petitioner appellant were that the Family Courts Act, 1964, did not provide for maintenance to minor grand-children; that even under section 498 of Cr. P. C. An order of maintenance could not be passed in, favour of grand-children; and that it has not been provided in the Family Courts Act that the rules of Muslim Law will be applicable, therefore it should
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be presumed that the said law has been impliedly excluded. The learned appellate Court repelled these contentions and observed: that conferment of powers of First Class Magistrate on a Family Judge does not limit his powers to grant maintenance in those cases only which are covered under section 488, Cr. P. C.; that the said power is only enabling one; that the jurisdiction of Family Courts extends to the subjects men--mentioned in the Schedule of the Act wherein item 3 relates to maintenance which subject by virtue of section 5 of the Act is within the exclusive jurisdic--tion of the Family Court, thus it has the power to grant maintenance; that the preamble of the Act read with section 5 and Schedule thereof shows that the question of maintenance of children has to be decided by "the judge of the Family Court"; that the Family Courts Act and other relevant laws do not. expressly or impliedly exclude the application of the Muslim Law-on the other hand, section 2 of the West Pakistan Muslim Personal Law Shariat) Application Act of 1961, provides that "these matter. Of the Muslim parties are to be governed by shariat", therefore, the question of maintenance of the minor grand-children is to be governed by Muslim Law; and that being so, para. 370, of "Mulla's Muhammadan Law" would be attracted and thus the decision on this question by the learned trial Judge was unexceptionable. Aggrieved, by the orders of the Family and appellate Courts, the petitioner then moved this Court in its ,writ jurisdiction. II. Petitioner's case-Nature of Controversy 2. Learned counsel for the petitioner, while agreeing with two learned Courts below that under Muslim Law the petitioner would be liable to maintain the minor children of his deceased son, subject to the condition that he is in easy circumstances, vehemently opposed the view held b-, learned Courts below that the rules of Muslim Law shall govern the question of petitioner's liability before the Family Court. In other words, according to him, the Courts under the Family Courts Act of 1964 are not competent to apply the substantive Muslim Law to resolve the question of liability of a grandfather to maintain the minor children of his deceased son. He, it is argued, would not be liable if the application of Muslim Law is excluded. In order to achieve this object (exclusion of Moslim Law) the learned counsel raised the folhwing contentions:- "(i) It was provided in section 2 of Muslim Personal Law (Shariat) Application Act, 193 7 (since repealed) that notwithstanding any custom or usage to the contrary, in all questions regarding various specified subjects including maintenance "the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat)". However, the repealing Act, namely, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, in its section 2, excluded the application of Muslim Personal Law (Shariat) to questions regarding maintenance. According to him, the omission of "maintenance" from categorisation of various subjects in section of the 1962 Act should be presumed to be an express exclusion of this subject from the purview of the said provision and in any case it amounted to implied exclusion- (ii) The Punjab Laws Act, 1972 in its section 5 provided for the application of Muslim Law to certain matters wherein the partiesare Muslim. Maintenance was excluded even from that provision .According to the learned counsel therefore, except for the limited period when the Shariat Application Act, 1937 remained in force, Muslim Law did not apply and would not apply to the controversies relating to maintenance; and lastly. (iii) Relying on para. 5 read with paras. 2 to 4 of "Principles of Muhammadan Law" by Mulla, he contended that the rules-- of Muslim Law would apply only if not expressly or impliedly excluded and when they are not opposed to justice, equity and good conscience." 3. In view of the complicated nature of the questions involved in the case I had asked Syed Farooq Azeem Hassan, Assistant Advocate--General, and Mr. Eitizaz Ahsan, Advocate, to assist the Court as amicus curiae. Both of them addressed elaborate arguments in support of the proposition that the question of maintenance, as in this case, shall be governed by Muslim Law. III. Views and Arguments of Syed Farooq Azeem Hassan,
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Assistant Advocate-General, Punjab, as Amicus Curiae 4. Syed Farooq Azeem Hassan, as amicus curiae, argued that Personal Law was applied in united India when there was a statute to permit its application because, otherwise, since the rule by East India Company,. The policy of the Britishers was well known that wherever they went they took the British common law with them. However, during the nine--teenth century, special enactments were made for the presidency towns for the application of personal law to non-Christians without making speci--fication of the items. By the end of 19th century, all kinds Of statute laws were made to apply to various subjects contracts, evidence, criminal law and procedure, etc. This mass of statutes-supplied the= gMuslim Personal Law (Shariat) Application Act, 1937 was mentioned as manifestation of this trend. In this very connection, the' learned A. A: G. Tried to link up the history of application of Muslim ta'ersonal Law from Punjab Laws Act, 1872 through the Shariat Act of 193 /. The West Pakistan Muslim Personal Law (Shariat) Application Act, 1967., Family Laws Ordinance, 1961 and Family Courts Act, 1964. After pressing the foregoing hisioricat background, Mr. Farooq Azeem hussar made the following formulations representing his views on the question involved in this case:--- "(i) That the Muslim Personal Law (Shariat) Application Act, 1937--which provided for the application of Muslim Law to the subject of maintenance has not been effectively repealed by section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, therefore, maintenance would continue to be governed by Muslim Law. He cited Yusuf Ali Khan v. The West Pakistan Bar Council Tribunal, Lahore (PLD 1972 Lah. 404in support of the proposition that the repeat, was not effective. ii) That the omission of maintenance from specification of subjects in section 2 of the West Pakistan Muslim Personal Law (Shariat) Act of 1962 was not intentional. It was an inadvertent mistake by the draftsman, otherwise, the policy underlying the Act of 1937 was continued in the Act of 1962, therefore, even if the 1937 Act be deemed to have been repealed, subject of maintenance is covered by the 1962 Act. (iii) That the provisions in sections 5 and 6 of the Punjab Laws Act 1872 made it incumbent for the Courts to apply personal law in all matters relating to family relations and, because, maintenance falls within this subject, therefore, personal law will apply in the present case. In this behalf, learned A. A: G. Took an alternative position, namely, that even if it be assumed that maintenance is a separate subject from family relations and the same was inten--tionally not provided in section 5 of the Punjab Laws Act, then, under section 6, thereof, Muslim Law shall govern the situation through its own rules of equity, justice and good conscience. In this behalf, while elaborating the argument. Learned A. A.-G. Made distinction between pre and post partition periods. For the former, he thought that under the then system of laws the only rules of equity, justice and good conscience which could be applied under section 6 would be those available in the English jurisprudence. He, in particular, pointed out that in fact these terms were taken from the law which was being applied by the Courts of Chancery in England. After partition however, he argued that the considerations would be different and the rules of equity, justice and good conscience as contained in Islamic jurisprudence would apply for three reasons; (a) historical, ideological and sociological compulsions; (b) constitutional mandates; (c) judicial trend in superior Courts of Pakistan. 1n this behalf, learned A. A: G. Sought support from Snell's Equity and the ,following cases: Miss Asma Jilani v. The Government of the Punjab PLD 1972 SC 139. Ch. Manzoor Elahi v. Federation of Pakistan, etc. PLD 1975 SC 66, Fateh Sher v. Sarang PLD 1971 Lab. 128, Muhammad Rafiq v. Mst. Khaliq-un-nissa and another PLD 1974 Kar. 20 and Shaw v. Director of Public Prosecutions (1961) 2 All E L R 446.
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(iv) That it is a mandate in the Constitution of 1973 for all the three main Organs of State, to evolve and create an Islamic philosophy, though with different emphasis for individual organs". In order-to support this proposition, learned A. A.-G relied on the preamble, Article 2, Article 31 and Articles 227 to 230 of the Constitution . While elaborating this argument, he emphasized the name of the State "Islamic Republic" and various clauses of the preamble which, he thought, were not enforceable but were guide to the under--standing of the policy of the basic law, namely, "a democratic State based on Islamic principles". On Article 2 of the Constitution, which makes Islam as religion of the State of Pakistan, learned A. A: G. Put forward the proposition that it falls in Part I of the .Constitution which is "Introductory". Article 4(2) of the Constitution which deals with the rights and liabilities of the citizens of Pakistan in general also falls in the same part. Relying on the observations of their Lordships of the Supreme Court (at page 147 et seq of the report) in the case of Ch. Manzoor Elahi, he contended that if Article 4 can be treated as enforceable through Courts even when remedies qua some fundamental rights are suspended, there is no reason why the same principle should not apply to Article 2 of the Constitution. In this behalf, he also thought that all the Articles in Part I including 4 and 2 are coherent inter se It contains political, religious, economic and juridical concepts. According to him, Islam has not been made State religion to theocratic sense nor in the sense that the religion of its population is Islam, because the State is not such an entity which can have a religion in the afore-- noted sense. He made reference to the Irish and English Constitutions as also Munir's Commentaries on Constitution to answer the general question as to the meaning of "religion of State". According to hire, after excluding the meaning qua population in the theocratic sense it would be possible to realise that Article 2. Would operate to no other field than the realm of laws and affairs of State. But, in concrete terms however, he further argued that Article 2 would be interpreted and applied as enforceable law when such cases start pouring in the Pakistani Courts where its application would be thought necessary. On Article 31, his comment was that it provided for an Islamic way of life but was not enforceable. 'Itonly furnished the guidelines. With regard to Part IX of the Constitution, he again emphasized that a new scheme has been introduce, to provide a body of advisers on Islamic Law to the"Parliament" which, in ore sense, at least (Western notions) affected its sovereignty qua law making. When, according to him, there is so much stress on Islam in the Constitution as to sacrifice a part of the sovereignty of the Parliament, it was an indication- an important one-for the other organs including Judiciary to apply Islamic principles in its day to day working. He thought that the Judges in Pakistan should not be hesitant in applying the Islamic Law because this is the need of posterity. He cited the example of exercise of judicial review by the judiciary in America. There was no provision in the American Constitution in this behalf when the Supreme Court under the influence of Chief Justice Marshal held that it had the power of declaring Federal law as unconstitutional in Yarbury v. Madison (1803) 1 Cranch 139 and thus the philosophy of judicial review developed into a full-fledged constitution judicial power. Similarly, .In Pakistan, the judicial trend of applying the Islammic principles of Law wherever possible, though at present in its inception, according to him, must in due course grow to its logical ends in accordance with the constitutional mandates. What he meant probably to convey was that the judiciary should, through its power of judicial review (which should be presumed to be inherent) instead of retarding the process, accelerate the same. It will help what he termed "public philosophy---to develop. A public philosophy based on true principles of Islam which is the hall-mark of the constitutional set- up in Pakistan. In this behalf, he also made a reference to the fact that the President and Prime Minister of Pakistan are ordained by the Constitution to be Muslims. In conclusion, he argued that this concept, when put in concrete proposition, would mean that even though the Courts in Pakistan would not, for the time being during the inter regnum, be competent to strike down valid enacted statutory laws on the basis of repugnancy to Islamic law, it is not only permissible but also desirable that wherever the statute law has left vacuum the same must be filled (by the Courts)
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with rules of Islamic philosophy in contra-distinction to the rules of any foreign system of laws including the British one. ' IV. Views and Contentions of Mr. Eitzaz Ahsanas amicus curiae ;;-- 5. Mr. Eitizaz Ahmn, another learned Advocate-the second amicus curiae, who like Syed Farooq A. Hassan is himself young scholar of the prevalent major legal systems of the world and has also studied in British Universities, started his submissions with a note of respectful difference with his learned friend, by putting forward the proposition that it is, the constitutional duty of the judiciary of Pakistan to apply Islamic law wherever a vacuum is found qua the statute laws". Before going into details, he propounded the following propositions :- (i) The sources of the law in Pakistan, in addition to the well-known ones, would include the precedents. He cited Articles 189 and 201 of the Constitution and case of Shorish Kashmiri PLD 1969 SC 14 in this behalf. All sources, when collected, would still leave some vacuum in laws which has to be filled with the rules of equity, justice and good conscience and not the English common law. Though more often than not, these principles were found by the pre-Partition Indian Courts to be in conformity with the said common law, but the latter was not the primary consideration. The Indian Courts refusedto apply the English common law in case of vacuum if- (a) a rule of common law was not equitable on its face (b) a rule was not applicable to the conditions in India : and (c) the statute which left the vacuum was not passed ore English principles of law. (ii) The present controversy in this case has arisen in a proceeding in the special (writ) jurisdiction of this Court which, under the British law, is governed by the specific rules described by special nomenclature-certiorari, mandamus, prohibition, habeas corpus, etc. The Constitution-makers in Pakistan, since the 1962 Constitution, have consistently rejected the British law on this subject and after giving up the above nomenclature, various constitutions leave made concrete provisions for the exercise of this special jurisdiction by the superior Courts. Thus, a major departure has taken place from the British common law on account of the difference in constitutional and other conditions in Pakistan. (iii) The Courts in Pakistan are required by Article 31 of the Constitution to apply Islamic law, wherever possible. (iv) Under the dispensation/system before the introduction of Islamic provisions in the Constitution/s of Pakistan the personal law of the parties (here Muslim Law), and. Not the rules of British law, was the law to be applied by the Courts "unless something had been done, to stop it, by the Legislature or the Courts". (v) The rule against extra-territoriality of laws would bar the application of any other law in case of vacuum in Pakistan. If a Pakistani law, general principle or specific statute would not be enforced by British Courts, there is no reason why the Pakistani Courts should continue to enforce the British laws in the form of rules of equity, justice and good conscience. He, in this behalf, also referred to some rules of Private International law. (vi) Even if the English principles underlying the British law were to apply, then wherever there is right there is a remedy and, because, in this cage the minor children have a right to obtain maintenance from their grandfather, therefore, the Family Courts must provide the remedy. (vii) And lastly, this learned counsel raised the argument that, as laid down by their Lordships of the Supreme Court in the case of Asma Alan! PLD 1972 SC : 39 (and under the Constitution), the laws given by a usurper cannot be enforced by the Courts on account of their juridical validity, but only for the sake of necessity. According to the learned counsel, the Britishers usurped the sovereignty in the areas including those constituting Pakistan and diverted the well-known system of law which was then in flow in those territories. After accepting good laws made by the foreign rulers, not because of their assumed. Validity but because of their necessity for the body politic, the Courts in
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Pakistan wherever a vacuum is found must revert back to that very system of law which was prevalent before the advent of British, but consistent with the later constitutional developments. 6. While dealing with the sources of law in the context of the present case, the learned counsel relied on Salmond's and Dias's Jurisprudence. According to him, British common law may be historical source, but not legal source of Pakistani law, on the same analogy as American precedents are not treated as a source of law for English Courts. On the other hand, he assumed that Islamic law is a legal source. He also thought that the legal sources are the only gates through which any branch of law can determine the course for judiciary in Pakistan. Learned counsel exploited with full advantage the effort by Dias to resolve the controversy between the naturalist and positivist points of view on the question of validity of laws. He argued that in the Dual Time Context the existing law might have a controlling influence on the present time span, but iii the continuing Time Context the naturalist view would seep in through the crevices of discretion when left to the Courts by the laws. And in matter of exercise of discretion, Judges and Courts would continue to apply moral rules of law. Apart from other considerations this course would be conducive to the public fidelity to the law. In this very context, learned counsel referred to the oath of office by the Judges and further contended that they cannot, but adopt an ideological approach whenever discretion is allowed to them. Thus possibilities would continue to arise whenever there is vacuum found in so far as the existing statute law is concerned which would thus be filled in by the moral/ideological law which in case of Pakistan is the Islamic law. In this very context, he heavily relied on Dias views on how judiciary shapes the law. 7. The next subject dealt with by the learned counsel can be treated as extension of the above- noted philosophical argument in a concrete down to the earth reasoning Learned counsel took up dozens of cases from foreign and Pakistani jurisdiction to show that the Judges of a sovereign State should not prefer any foreign norms in the legal field so long as they can resolve the controversies through;. before them on the basis of their own standards of rules of natural justice equity and good conscience. He cited some cases from pre-Partition India wherein he thought the British rules of equity, good conscience and justice as distinguished from common law were either not applied or were applied with reservations. They are : Blreswar Ghosh v. Panchcouri Ghosh and others AIR 1923 Cal. 538, Alfred Wilkinson v. Eamily Norah 6I'Ilkinson and another AIR 192'; Born. 321, Sundermull v. Ladhuf.:i.: Kalr.Jirr. A I :L 1924 Cal. 240, Sheo Ratan Singh v. Karam Singh and others AIR 1924 All. 857,J. H. Pattinson and others v. Bindhya Debi, AIR 1933 Pat. 196, Raja Rampal Singh v. SiArendro hikrani Singh AIR 1937 Oudh 82,Emperor v. U. Datrtpala AIR 1937 Rang. 8?, Balammal v. Palandi'Naidu and others AIR 1938 Mad. 164, Chhedi Lal v. Babu Bandan AIR 1944 All. 2'4, Haji !Anwir Ahmed 4. Hafiz Maqbul Ahmad AIR 1545 All. 318, Mvhammad Allahdad Khan v. Muhammad Ismail Khan I L R 30 All. 289, Nihal Singh and others v. The Collector of Bulandshahr I L R 38 All. 237. Reliance was also placed on Salmond's Jurisprudence, Anglo-Muhammadan Law by Wilson and Islamic Surveys (2) by N. J. Coulson. He then cited Hamira Bibi and others v. Zubaida Bibi and others (1) to show that sometimes even English Judges, while dealing with the question of filling in vacuum in law, instead of applying English rules of equity, justice and good conscience, applied the same rules from Islamic Law when the English rules clashed with the conscience of the parties involved in a particular lie. But at the same time he was critical that such instances would be very rare. A recent Pakistani case, namely. Abdul Ghani arid others v. Taleh Bibi and another (AIR1916PC46has also been cited to show that in case of vacuum, it is necessary to apply the Islamic Law. On general question of conscience of the Judges, the learned counsel was bitterly critical of the attitude of some of the foreign Judges. While interpreting and applying pre-Partition laws, he cited Palmer v. Wich & Puellnaeytown Steam Shipping Company, Limited (1894 A C 318to
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to show that some rules of British Law were not applied even for Scotland. But when the question of the validity of certain. Waqfs in Muslim Law arose in the well-known case of Abdul Fata ((1894-95) 22 1 A 76 -I L R 22 Cal. 619the same learned Judge who had written judgment in the case of Palmer followed absolutely different philosophy and applied the principles of British common law to a subject which fell under pure personal law of Muslims. This case was decided by the Privy Council in 1904 and it was not till 1913 when the Legislature realising the mistake committed in the sz,i:a .Decision .Corrected the same by a declaratory legislation (Waqf Validating Act of 1913). In this connection, learned counsel cited the comments made by Aziz Ahmad in "Islamic Law" and N. J. Coulson in "Islamic Surveys ()". He made brief references to Superior Courts of…
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