HUMAYUN HASSAN vs ARSLAN HUMAYUN and another

ORDER

1. MIAN SAQIB NISAR, J.---This appeal with the leave of the Court has simple facts, in that, respondent No,1 being a minor son of the appellant filed a suit for maintenance against his father, on 2-4-1999 and the learned Family Judge passed a decree dated 3-2-2009 in his favour, to the tune of certain amount, which has attained finality up to this Court. It seems that the execution proceeding qua the decree, filed by the respondent were pending and as in the meanwhile he (respondent No,1) has attained the age of majority, the appellant therefore on 14-9-2011 moved an application to the said Court in the terms below:-- "That the decree holder/Arslan Humayun attained the age of majority on 1st March 2011 is no more the minor ware (sic) ward and as such the petitioner/judgment debtor is under no obligation to further pay maintenance allowance to Arslan Humayun. It is submitted that this Honible Court has now ceased to have any jurisdiction to further proceed with the matter.

2. ' It is, therefore, respectfully prayed that the instant application may kindly be accepted and the titled execution petition may kindly be dismissed/ disposed of as being fructified."

3. ' This application was dismissed by the Executing Court vide order dated 28-11-2011, the operative part whereof reads as:-- "The applicant/judgment debtor cannot be relieved from his responsibilities for providing maintenance to the minor fixed by the Court and upheld by the august Supreme Court of Pakistan. It in the interest of justice, equity and fair play that judgment debtor should maintain his son up to the time that he completes his education and become working hand. In this regard, I am fortified by dictum laid down in PLD 2005 Supreme Court 24. Application in hand is hereby rejected. Now to come up for payment of all the remaining outstanding maintenance allowance on 19-12-2011".

4. ' This order, when challenged by the appellant through a constitution petition before the learned High Court, has been upheld vide impugned judgment dated 28-2-2012. Leave in this case was granted on 1-1-2013 to consider the effect of the law laid down by this Court in the cases reported as Arbab Mir Muhammad v. Mst. Iram Iltimas (PLD 2005 SC 24) and Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75) and whether the respondent after having attained the age of majority (under the codified law of the country) is still entitled to and/or the appellant is bound to maintain his adult son; besides, whether the Executing/Family Court has the jurisdiction to compel the appellant to pay the maintenance allowance, when the respondent admittedly has crossed the age of 18 years.

2. Learned counsel for the appellant has made reference to the two noted judgments and has argued, that no law has been enunciate in these dicta, to the effect that after attaining the age of majority a father shall be bound to maintain his adult son. In Arbab Mir Muhammad case (supra), passing remarks have been made, whereas in Alaf Din case, it has been categorically held that the father is not bound to bear the study expenses of his major son. It is submitted that the obligation of the father to maintain his children is specified in Section 370 of Muhammadan Law by D.F. Mullah and the respondent's case does not fall within the purview thereof; it is added that respondent is 19 years and 11 months of age, he is studying in Australia, where he has gone without the consent of his father, rather has been sent by his mother, since divorced by the appellant; Arslan, respondent No,1, keeps no contact with the appellant, therefore in such circumstances the appellant cannot be compelled to pay the maintenance to his estranged son. Moreover, after attaining the age of majority, the decree for maintenance against the appellant has lapsed; it has ceased to exist and is rendered in-executable; besides, that the Executing Court while executing a decree passed under Muslim Family Courts Act, 1964 shall only have the jurisdiction to enforce the decree, till the time the decree holder (respondent No, 1) was a minor, but once he has attained the age of majority, the Executing Court is divested of its jurisdiction to enforce the decree and the impugned orders, are thus without jurisdiction.

3. On the contrary, learned counsel for the respondent has argued,that as the respondent is the son of the appellant, who is not yet capable of maintaining himself as he is studying, therefore, his father is duty bound to maintain his child till the time he completes his education and is able to earn his livelihood.

4. Heard There can be no cavil with the proposition that the maintenance issue(s), in relation to Muslim relatives shall be governed and regulated by the principles/injunctions of Islam i.e, as per the personal law of the parties. In this context, according to section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance^[1]; but obviously corresponding to and commensurating with the means and the capacity of the father to pay. Anyhow, the same jurist in section 370 of the book has elucidated the liability of the father to pay the maintenance to his children as follows:-- "370. Maintenance of children and grandchildren.---(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 maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. {{FOOT NOTE}} Ahmadellah v. Mafizuddin, Ahmad and another (AIR 1973 Gauhati 56). {{FOOT NOTE}}

(2) If the father is poor, and in capable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances."

(4) From the above it emerges, that subject to the conditionalities mentioned therein, a father in the normal course is bound to maintain his son(s) only till the time he attains the age of puberty, however there is an exception to this rule, and that is the disability of the son by infirmity or disease in which case the obligation of the father is extended for his adult son as well. It is not disputed by the respondent side, that Arslan has attained the age of puberty; he is a major in terms of section 3 of the Majority Act, 1875 read with Section 4 of the Guardians and Wards Act, 1890, as he is about 20 years of age. And in any case he is an adult and not a minor any more. He is not suffering from any disability on account of infirmity or disease. Thus the father in the ordinary course, under the aforesaid clause is not obliged to maintain him and the case of the respondent does not fall within the exception(s) mentioned by D.F Mullah. However, some other renowned jurists in their exposition on the subject have expanded the scope of exemption. As Neil B.E. Baillie in his book/digest Muhammadan Law has described:- "And so also students of learning, when unable to earn anything; and their right to maintenance from their fathers does not abate while engaged in legal study."

5. Furthermore.. ' when a man is absent, but has left available property, maintenance may be ordered out of it by the judge to the following persons if they are poor; but to none other, viz., his parents; his male children if young, or, though adult, if unable to gain their livelihood"

6. ' Ammer Ali (Syed) in his commentaries on Mahommedan Law, revised edition, by Justice S.H.A.

7. Raza has opined as:- "Maintenance of male children. --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 diseases or physical infirmity, or are engaged in study.

8. 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.

9. ' 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"

10. ' In the Principles of Mohammedan Law by Dr. Nishi Purohit , it has been provided as:- "Father's obligation of maintenance comes to an end when the sons become major. But the father is required to maintain his adult son who has been disabled on account of some disease, or physical or mental infirmity or is engaged in study (emphasis supplied)"

11. ' Besides the above, in, relation to the maintenance of children, this Court in the case reported as Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75), has held: "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 inevitably be 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.

12. ' Again in interpreting the word "maintenance" some reasonable standard must be adopted.

13. Whilst it is not confined merely to food, clothing and lodging, it cannot, by any stretch .Of imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that that child must be maintained until it is in a position to earn its own livelihood, in an honest and decent manner in keeping with its family status (emphasis supplied)"

14. ' In the case reported as Arbab Mir Muhammad v. Mst. Iram Iltimas (PLD 2005 SC 24), on which reliance has been placed by the learned Family Judge (executing court) in his order dated 28-11- 2011, this Court has neither referred nor discussed or considered any law of any nature on the subject and no judicial opinion has been expressed in connection with the proposition(s) in hand.

15. This decision is only a leave refusing order, without enunciating any law in terms of Article 189 of the Constitution of Pakistan, 1973. However in the context of the facts of that case, which matter admittedly had neither arisen from any order of the executing court, or in the course of execution of a maintenance decree, this Court passingly observed that "Mr. Abdul Samad Khan, learned Advocate Supreme Court for the petitioner, inter alia, contended that legally the petitioner was not bound to maintain his son because the son had attained the age of majority. He referred to section 370 of Mahomedan Law by D.F. Mulla and reiterated that a father in any case is not bound to provide maintenance to his adult son unless he is disabled or infirm.We have considered the arguments of the learned counsel for the parties and carefully examined the record available. It is admitted fact that the petitioner is well-to-do person and providing luxury of life to other sons from his other wife by providing Car to each one of them, which fact is not denied by the petitioner. The maintenance allowance awarded by the Courts below is entirely in consonance with the law, which is purely for the welfare of the sons of the petitioner. The discriminatory treatment so given by the petitioner, between his sons, has rightly been considered by the Courts below." , thus it is clear from the above, this court in the said matter declined to exercise its discretion in favour of the father, on some other consideration without in any manner enunciating the law that the father is obliged to maintain his adult son, where there was no such decree in his (son's) favour.

16. 5.

17. Be that as it may, in view of the preponderance of the opinion of the jurists as has been referred to above, it emerges that the obligation of the father to maintain his adult son who has not yet accomplished his basic education, enabling him to earn his livelihood, may be considered by the court(s) in an appropriate case, a factor falling within the exception to the general rule (supra). But for that, a specific case has to be initiated and set out by the son, before the Court of original jurisdiction (competent jurisdiction); and the Court on the basis, of the case so propounded; the pleadings of the parties after conducting the trial is obliged to determine in each case, with reference to the facts of that case, whether the adult son should at all be entitled to the maintenance, as he still is pursuing his education; the Court in this regard shall keep into consideration, his age; whether he has his own resource to sustain his studies; the nature and the stage of his studies; his academic results, his fervor and zeal for the education; the extent of education which is essential, enabling him to earn the livelihood; obviously, this shall not include the higher studies, and in any case not the education abroad; especially where the son has gone aboard for such education either of his own without there being any promise by the father or on the behest of someone else who had assured him to support. It may be pertinent to mention that while determining and adjudging whether the father should provide maintenance to his adult son one of the important factors which should be kept in view by the Court(s) is whether the son gives due respect and show regards to his father, and in any case is not disobedient or estranged man.

18. Besides the capacity of the father in this behalf should also be kept into view.

6. Be that as it may, all the above, determinations, in our considered opinion falls however within the purview and the exclusive jurisdiction of the (competent) court, in its original and plenary jurisdiction, and the executing court absolutely has no empowerment in this behalf at all. In the instant case, no such determination has ever been made; no specific judgment and decree has been passed in favour of the son and against the father, directing the latter to provide the maintenance to the former, even after he has attained the age of majority or has ceased to be a minor. Thus, the executing court, which under the settled law has no jurisdiction to go beyond the decree cannot require and direct the father (judgment debtor) to continue paying the maintenance to his adult son, only for the reason that he is yet studying. The decree dated 3-2- 1999 (which had attain finality) as contains no specific command, that it shall remain in force even beyond the majority of respondent No,1, thus it shall cease to have effect automatically the day said respondent, attained the age beyond 18 years, and thus for all intents and purposes the said decree was rendered in-executable. And the executing court was divested of its jurisdiction to enforce it further, such court directly or indirectly had no jurisdiction to extend the life of the decree, when the decree in the ordinary and normal course had to lapse the day respondent No,1 became adult.

19. ' Therefore, by allowing this appeal, the order/judgment(s) impugned herein are set aside, with the consequence that the execution proceedings initiated by the respondent No, 1 against the appellant for the enforcement of the decree dated 3-2-2009 shall come to an end from the date of respondent's attaining the age of majority i.e, 18 years.

20. (Sd.)

21. Mian Saqib Nisar, J ' I agree and have added a short note of my own.

22. (Sd.)

23. Asif Saeed Khan Khosa, J (Sd.)

24. Ijaz Ahmed Chaudhry, J ' ASIF SAEED KHAN KHOSA, J.---I have had the privilege of going through the proposed judgment authored by my learned brother Mian Saqib Nisar, J. And I am completely in agreement with the factual and legal conclusions reached therein. I only want to add that the compendia of the principles of Muslim personal law compiled by different jurists from time to time are collection and recording of and commentaries upon various general and specific principles which include social, moral and legal principles relevant to Muslim personal law. When a court of law is to adjudicate upon parental or filial obligations of a Muslim it is only the legal principles concomitant to such obligations which are relevant and not the social or moral principles. A father, or any of the parents in a given case, may be under a social or moral expectation, compulsion or obligation to maintain a minor offspring for as long as the offspring does not attain the requisite physical, mental, intellectual and financial capacity to survive and sustain on his own but the case in hand before the learned trial court was only in respect of maintenance of a minor son by his father which issue, on the legal plane, could not have been stretched by the learned executing court and the learned Judge-in-Chamber of the Lahore High Court, Lahore to a stage beyond the sons's minority by blurring the distinction between social and moral obligations and legal obligations under the principles of Muslim personal law.

25. (Sd.)

26. Asif Saeed Khan Khosa, J