Mst. HALEEMA BIBI Versus ADDITIONAL DISTRICT JUDGE, LAYYAH
MUDASSIR KHALID ABBASI, J.--- Through this constitutional petition under Article 199, petitioners have challenged the legality of order dated 08.12.2016 passed by respondent No.1/learned Additional District Judge, Layyah whereby civil revision filed by respondent No.3 against order dated 14.10.2016 passed by respondent No.2/learned Family Judge, Layyah was accepted.
2. Brief facts of the case are that an execution petition filed by the petitioners is pending before respondent No.2 wherein respondent No.3 has filed an application for his exemption from paying the decretal amount which was dismissed vide order dated 14.10.2016. Feeling aggrieved, respondent No.3 filed a civil revision before respondent No.1 which was accepted vide impugned judgment and decree dated 08.12.2016. Hence, the petitioners filed this writ petition.
3. Learned counsel for the petitioners contends that impugned order passed by respondent No.1 is against the law and facts of the case. Further contends that respondent No.3 is a man of means and he can conveniently pay maintenance allowance but this fact has been ignored by learned lower appellate Court. Contends that the appeal filed by respondent No.3 was not maintainable. Argued that impugned order has been passed in a slipshod manner without application of mind, therefore, same is liable to be set aside.
4. On the other hand, learned counsel for respondent No.3 has opposed the contentions raised by learned counsel for the petitioners contending therein that the impugned order is in accordance with law and does not require any interference by this Court. Further contends that no decree for payment of maintenance allowance was passed against respondent No.3 and he was not party to the suit filed by the petitioners. Further contends that respondent No.3 is of old age and not in a position to pay maintenance allowance to the petitioners. Lastly argued that this petition is not maintainable in the eyes of law, therefore, same is liable to be dismissed.
5. I have given my conscious thought to the contentions of learned counsel for the parties and perused the record.
6. Primary argument raised by learned counsel for the petitioners is that impugned order dated 08.12.2016 passed by respondent No.1 is without jurisdiction because respondent No.3 had moved an application before the executing court that he being grandfather is not under any obligation for satisfaction of the decree regarding the maintenance of his grand children. This was seriously opposed by the present petitioners. On 14.10.2016 learned executing Court dismissed the application. Feeling aggrieved respondent No.3 filed a revision petition before learned Additional District Judge, Layyah which was allowed vide impugned order 08.12.2016. Precise contention raised by the learned counsel for the petitioners is that in terms of sub-clause 3 of section 14 of Family Courts Act, 1964 no appeal or revision shall lie against an interim order. This seems to be correct because language of the afore-cited provision is very clear reading as under:-
"14. Appeals :- (3) No appeal or revision shall lie against an interim order passed by a Family Court."
7. So far as filing of the present constitutional petition is concerned suffice it to say that statute excluding the right of appeal from the interim order could not be bypassed by bringing under attack such interim order in constitutional jurisdiction "Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another" (1996 SCMR 1165).
8. Besides the afore-cited aspect of the case so far as the liability of grandfather to maintain his grand children is concerned Para 370 of Muhammadan Law provides that if the father is poor or infirm and the mother is also poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances. Particularly, when the respondent No.3 has failed to establish that petitioners are independent in their financial affairs or the respondent does not enjoy such financial position. In these circumstances, the minors cannot be left remediless in the lifetime of a grandfather having reasonable financial position. Learned respondent No.2/executing Court referred certain properties owned by the respondent No.3 and during the course of arguments learned counsel for the petitioners also referred certain documents regarding the land owned by the said respondent (grandfather). In 2004 YLR 616 titled as "Abdullah v. Jwaria Aslam and 2 others" Lahore it has been observed that:
Even if the custody of minor is with mother, father or grandfather is bound to maintain sons, until they attain age of puberty and daughters; until they are married-Father or grandfather not bound to maintain adult" sons, unless disabled by infirmity or disease.
In another case cited as "Muhammad Anwar Khan v. Sabia Khanam" (PLD 2010 Lahore 119), it has been held as under:-
Liability of the grandfather to pay maintenance for the minor would include past maintenance as well as future maintenance as the grandfather was responsible to maintain his grandchildren in absence of the father or on the inability, of the father to maintain his children.
Reliance is also placed on "Haji Nizam Khan v. Additional District Judge, Lyallpur and others" (PLD 1976 Lahore 930), relevant portion of which is reproduced herein below:-
"It is from the above main provisions of the Islamic law on the question of the obligations and rights of the opulent and needy relations in Muslim society that as a corollary it has been unquestionably accepted that a grandfather in easy circumstances is bound to maintain and support his needy grand children."
What has been narrated above, I am fully persuaded to interfere in the impugned order. This petition is allowed. Order dated 08.12.2016 passed by the learned Additional District Judge/respondent No. 1 is set aside. No order as to cost.
MQ/H-10/L Petition allowed.