GHULAM NABI vs MUHAMMAD ASGHAR and 3 others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the judgment of the High Court; whereby in a case of maintenance, a Constitutional (Writ) Petition filed by the respondents' side (children of the appellant) was allowed and they were granted past maintenance, subject to the law of limitation. Leave to appeal was granted on noticing the facts and the point involved as under:-- "Mst. Razia Begum filed a suit against the petitioner claiming maintenance for herself and for three minor children from September, 1982 onwards. After contest, the suit was dismissed by the Judge, Family Court, Jhelum, by judgment dated 15-3-1988. However, on appeal, the Additional District Judge, Jhelum reversed the decree passed by the trial Court and allowed the maintenance to the minor children from the date of the institution of the suit onwards. Still aggrieved, the respondents filed a Constitutional petition and prayed for an order for grant of past maintenance from September, 1982. The learned Judge in Chamber allowed the petition and awarded maintenance w,e,f, 3-9-1982. The petitioner has questioned this judgment in this petition for leave to appeal.

2. ' Learned counsel for the petitioner mainly relies on a judgment of the Lahore High Court in the case of Mst. Ghulam Fatima v. Sheikh Muhammad Bashir PLD 1958 (W.P) Lahore 596 in support of his submission that past maintenance could not be granted, wherein relying on the Hedaya (Hamilton's Second Edition, page 149) Bailie's Muslim Law (Third Impression, 1957, page 460 and Urdu translation of Durral Mukhtar by Maulvi Khurram Ali, it was observed at page 599 of the report as follows:-- "It also seems clear from the authorities on Hanafi Law that neither the child nor the person who maintains it can claim past maintenance from the father unless the same has been previously fixed either by a decree of the Court or by the father himself. This proposition seems to from the propositions mentioned in the preceding paragraph and is supported by the exposition of the law relating to maintenance in the text-books."

3. ' The learned counsel further submitted that the cases relied upon by the learned Judge in the High Court are distinguishable, inasmuch as in Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302 the order for past maintenance passed by the Arbitration Council was not disturbed by this Court, but in the present case, even the Additional District Judge did not pass any order for past maintenance. It is also submitted that the High Court exceeded its powers under Article 199 of the Constitution."

4. Learned counsel to start with reiterated the same argument which was noted in the leave grant order with reference to the decision of this Court in the case of Muhammad Nawaz. In support of his contention that the past maintenance could not be allowed to the children of the appellant, learned counsel cited some other cases from the Lahore and Sindh High Courts. However, after considerable discussion he had to agree that this Court while permitting the grant of past maintenance did not make any exception with regard to the children as distinguished from the maintenance to a wife. Otherwise too it looks unfair that while the wife gets past maintenance the children should, as contended by the learned counsel, be deprived of this benefit. Cases are not lacking where, while granting maintenance to the wife, Courts have taken into account her needs, vis-a-vis, any minor child which she might be supporting in the same household. Accordingly, we have not been able to find any force in the argument of the learned counsel.

5. ' Next, the learned counsel also argued that in case the children are being provided sustenance by their maternal-grandparents, the father should not be burdened with duty to maintain his own children. His main contention is that when somebody is voluntarily maintaining minor children who are close relations, this would not infringe any rule of Muslim Law of Maintenance. He also tried to support this proposition by citing case-law including the well-known case of Haji Nizam Khan v.

6. Additional District Judge, Lyallpur and others PLD 1976 Lahore 930.

7. Although leave was not granted to examine this point we permitted the learned counsel to advance the same so as to clarify the legal position. No doubt grandparents, if affluent, will be obliged to maintain grand children if they are destitute. But the command would issue in this behalf when there is no other nearer relation and/or more responsible in this behalf. Accordingly, when a specific proposition was put to the learned counsel in this behalf he could not advance his argument any further. The question posed was: whether, in presence of the father the grandparents, whether on the paternal or on the maternal side, will be more responsible for maintaining their grandchildren as compared to the father's duty to maintain his own children learned counsel without hesitation admitted that the priority-wise it would be the duty of the father.

8. ' In the light of the foregoing discussion we find no force in this appeal. The same, accordingly, is dismissed with no order as to costs.