Pakistan Case LawMst. Samrina Versus Ubaidullah
The petitioner, alongside her three minor children, instituted a constitutional petition under Article 199 of the Constitution of Pakistan 1973, challenging orders of the Family Court and the appellate court that fixed maintenance for each minor at Rs. 3,000/- per month with a 10% annual increase based on a mutual understanding. The core legal questions involved whether a mother's agreement can restrict or compromise the minors' independent right to maintenance, and whether the High Court in writ jurisdiction could modify the maintenance amount without remanding the matter for fresh evidence. The Peshawar High Court held that maintenance of minor children is an independent, vested statutory right that cannot be waived, settled, or relinquished by their mother through compromise. Observing inflation, increasing educational and living needs, and noting that strict rules of the Qanun-e-Shahadat Order 1984 do not apply to family matters under Section 17 of the West Pakistan Family Courts Act 1964, the Court enhanced each minor's maintenance to Rs. 7,000/- per month with a 10% annual increase.
- Can a mother enter into a compromise or agreement that waives or compromises the independent statutory right of minor children to maintenance from their father?
- Whether strict provisions of the Qanun-e-Shahadat Order, 1984 apply to proceedings before the Family Court under the West Pakistan Family Courts Act, 1964?
- Can the High Court under Article 199 enhance the maintenance allowance of minor children without remanding the matter for evidence regarding the father's financial capacity?
Dr. Khurshid Iqbal, J .--- Mst. Samrina, the petitioner/decree-holder, along with her minor children, the petitioners Nos.2 to 4, filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and prayed for the following relief:
"On acceptance of this writ petition, the orders/judgements of both the Courts below may kindly be set aside and maintenance for minors petitioners may kindly fixed as prayed for in the head-note of plaint Juz "Jeem, Daal and Zaal" against the respondent No. 1. Any other remedy which is just and efficacious may also be graciously awarded though no specifically prayer has been made thereof."
2.Facts shortly are that Mst. Samrina, the petitioner, along with her minor children (the petitioners Nos.2 to 4), brought a family suit against Ubaidullah, the respondent No.1, as well as Mst. Meraj Bibi, his mother, before the learned Judge Family Court, Swat, for the recovery of 20 Tola gold her dower, the dowry articles as per attached list, 3 Tola personal gold and maintenance allowance to the tune of Rs. 15,000/-per month for herself. Similarly, she sought maintenance allowance per month to the tune of Rs.15,000/- for petitioner No.2, Rs.10,000/- for petitioner No.3 and Rs.10,000/- for petitioner No.4. She further sought separate residential accommodation for the petitioners Nos.2 to 4. The respondent No.1 and his mother Mst. Meraj Bibi being defendants in the family suit submitted their written statement, denied the stance of petitioner No.1. Needless to mention here that admittedly, Nikah inter-se the spouses i.e., the petitioner No.1 and respondent No.1 has been dissolved through oral assertion before institution of the family suit.
3.During the course of the trial, through a private settlement, the petitioner No.1 and the respondent No.1, partially patched-up the matter to the extent of dower and dowry articles while rest of the claim in respect of fixation of maintenance allowances for all the four petitioners were left for the Court to be decided on merits. The terms and conditions of private settlement were reduced into writing in the shape of a compromise deed Ex: PA. For affirmation of the compromise, joint statement of the petitioner No.1 and respondent No.1 was recorded. Hence, the learned Judge family Court disposed of the case in the terms of the compromise deed Ex: PA through an order dated 04.01.2020.
4.On 16.01.2020, the respondent No.1 submitted an application before the learned family Court for correction in the aforesaid order to the effect that order dated 04.01.2020, maintenance allowance of all the petitioners was re-fixed. The learned family Court vide order dated 12.02.2020, determined the maintenance allowance as follows:
"Maintenance of minor:
I. Three thousand rupees per month each with 10% annual increase.
II. The petitioner/defendant will also be responsible for yearly books/stationery and uniform of minors.
III. The petitioner/defendant will also be liable for medical expenses in case of any medical emergency of minors.
Visitation with minors:
I. 10 days of summer break as per wishes of minor and dates may decide by parties.
II. 20 days winter break, 10 days in first month and 10 days in second month as per wishes of minor and father.
III. Visitation per month on any weekend feasible to the father and minors.
Maintenance for plaintiff for period for entire Iddat period is also determined at the rate of Rs. 15,000/-."
5.Being not satisfied with fixation of the maintenance allowances in favour of the minor petitioners Nos. 2 to 4, the petitioner No.1 preferred an appeal against the above-mentioned order, which was dismissed by the learned Additional District Judge/Izafi Zilla Qazi-III, Swat, vide impugned judgment dated 21.04.2021. Hence, they filed the instant writ petition.
6.I have heard arguments of Mr. Rahman Ali Khan, learned counsel for the petitioners and perused the record.
7.A bare perusal of the impugned order dated 12.02.2020 of the learned Judge Family Court would reveal that the petitioner/decree-holder in person along with her counsel and the respondent/judgment-debtor through his attorney were present while the issue relating to determination of maintenance allowance was determined. The order further reveals that the parties so present mutually agreed on Rs.3000/- per month each with 10% annual increase. However, the petitioners felt aggrieved and filed an appeal which was dismissed.
8.During the hearing of instant petition on 10.11.2022, the petitioner prayed for Rs.7000/-per month per head with 10% yearly increase. Learned counsel for the respondent sought time to seek instructions from the respondent. Today during the arguments, the learned counsel for the respondent submitted that with the addition of 10% annual increase, the amount of Rs.3000/- fixed in the year 2020 would, by the end of this year, reach to Rs.6500/-. It follows that even if it is not determined as Rs. 7000/- at this point of time, with the annual increase it has automatically increased significantly.
9.During the arguments, the learned counsel for the respondent/ judgment-debtor submitted that financial position of the respondent is not very much sound. He added that the respondent/judgment-debtor has to maintain his second wife and his children from her. He further added that his evidence was not recorded in this respect. He urged that if at all the petitioner is not satisfied with the maintenance allowance as already determined, she may file a fresh suit. The record shows that no doubt the respondent/judgment-debtor did not produce his evidence at all, he had been able to submit affidavit in support of his contention when he patched up the matter with the petitioner. From the affidavit of the respondent coupled with the evidence of the petitioner it appears that the respondent had shifted the petitioner, and her children to Islamabad, where they resided with him for some time. This suggests that the respondent was financially sound to arrange a residential facility for the petitioner and her children and to maintain them there. Even otherwise, Rs.3000/- per month fixed in the year, 2020, is in no way sufficient to cater to the diverse basic necessities of his children from the petitioner. There could be no denial of the fact that two minors, namely, Zoha Khan and Fakhr-e-Alam are school going children and the respondent No.1 cannot run away from his liability to maintain them. This being so, his contention that the Rs.3000/- per month fixed in the year 2020 is still sufficient, is not convincing. It is worth mentioning that presently, Zoha Khan, Fakhr-e-Alam and Kashmala are now respectively of 12, 08 and 05 years of ages. Needless to say, their needs have increased and multiplied. Yet another significant aspect of the matter is that the petitioner had prayed for Rs.15,000/- for Zoha Khan, Rs.10,000/- each for Fakhr-e-Alam and Kashmala, in the year 2018 when she filed the suit. In the year 2020, she agreed to Rs.3000/- with 10% annual increase. The mere fact that she agreed to Rs.3000/- per month cannot be used as a ground for enhancement. As noted above, during the hearing on 10.11.2022, she proposed Rs.7000/-, which in the circumstances referred to above seems to be appropriate.
10.Above all, the respondent/ judgment-debtor being father has the obligation to maintain his children and that, too, to the maximum level of his financial resources so as to leave no stone unturned in their health, education and all other needs. As a decree has already been passed, therefore, I do not deem it appropriate to send this matter back to the learned executing Court for recording of evidence on the financial status of the respondent/judgment-debtor. Under Section 17 of the West Pakistan Family Courts Act, 1964, the Qanun-e-Shahadat Order, 1984, is not applicable to the family disputes. It follows that the family Court can adopt any procedure for resolution of dispute provided such procedure is neither illegal nor barred by the family Court Act, nor against the rights of the parties. Reliance is placed on the case of Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others, reported as 2011 SCMR 1361 [Supreme Court of Pakistan], in which it was observed
"21. We are conscious of the fact that under section 17 of the Act the provisions of the Code have been made inapplicable and the purpose for enacting such Section was in fact to give effect to the preamble of the Act, which provides that it is meant for expeditious settlement and disposal of disputes. The object of the Act is to minimize the technicalities and procedural bottlenecks for the purpose of speedy justice between the parties in shortest possible time and in shortest possible manner. The Act has changed the forum and also altered the method as to how the trial under the Act is to be proceeded and case decided. A bare reading of the Act clearly suggests that wilfully and purposely by exclusion of procedure as prescribed under the Code, much has been left at the discretion of the trial Judge/Family Court i.e. to conduct the trial in the manner as provided under the Act and also to adopt all possible measures and take all such steps, which result in achieving the purpose and object of the Act."
11.Moreover, maintenance of children is a vested right, on which, no compromise, not even certain agreement by their mother in that respect can take it away. In this respect reference may be made to the cases of Mst. Sattaran Begum and 3 others v. District Judge, Khanewal and 3 others, reported as 2011 YLR-2254 [Lahore] and Muhammad Riaz v. Mst. Asia Parveen, reported as 1997 MLD 142 [Lahore]. In the first case, with reference to 1997 MLD 142 (Lahore), it was held:
"9. Thus the perusal of the above said case-law also shows that to the extent of maintenance of the minor the compromise between the parents affecting his right i.e. the minor's right cannot be waived of by agreement. As far as the case-law cited by learned counsel for the respondent is concerned those relate to the civil matter in which the minors were not the parties. In the present case admittedly the mother of the minors agreed for the appointment of Referees but there is absolutely no reference to the Referee that as to on what point they would decide the matter. The maintenance is a vested right of the minor which must be paid by the father and merely on the statement of mother this right cannot be snatched. Both the courts below had not considered this legal aspect of the case while appointing the Referee or while deciding the matter on the basis of the statements of two Referees."
In the second case, the Court observed:
The reliance of the petitioner on an agreement entered into between respondent No.1 and the petitioner to the effect that respondent No. 1 would not claim any maintenance from him for the prospective child cannot bind respondent No.2, since the right of being maintained by his father is his independent legal right which cannot be waived by any agreement purportedly entered into by respondent No. 1 on his behalf even before his birth. The contention that the amount of maintenance is excessive is also without force. Considering the present high cost of living, Rs.500 per month is a pittance and the petitioner being employed in Saudi Arabia is well able to pay this amount."
12.As sequel to my above discussion, I determine that Rs.7000/- per month with 10% yearly increase for each child (minor petitioners) of the petitioner and the respondent as sufficient to meet their basic needs. In this view of the matter, the instant petition is disposed of accordingly.
MQ/139/P Order accordingly.
Judges on this bench
- Dr. Khurshid Iqbal172 judgments