' SHEZADA MAZHAR-J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of a suit for recovery of maintenance allowance which was dismissed by the learned Additional District Judge, Shakargarh vide judgment and decree dated 31-10-2008.
2. Petitioner's suit for recovery of maintenance allowance was decreed by the learned Judge Family Court, Shakargarh vide judgment dated 2-4-2008 and the minor/petitioner was found entitled for maintenance allowance @ Rs,800/- per month with 5% prospective annual increase from the date of institution of suit till she is married. It was also held that though petitioner is not the real daughter of respondent No,1, still he was bound by his agreement of adoption. On appeal, learned Additional District Judge, Shakargarh dismissed petitioner's suit primarily on the grounds that since petitioner was not real daughter of respondent No,1 and that Islam does not recognize the concept of adoption. Hence, this petition.
3. Learned counsel for the petitioner submits that undisputedly respondent No,1 had given solemn pledge that he will maintain and bring up petitioner as his daughter and by his willful and free act got the petitioner recorded as his own daughter cannot wriggle out of his commitment. Further submits that under the Islamic law paternity is established by single pronouncement if the minor is Laqeet and whoever picks up is bound to maintain if he has not given the child to state. Also submit the learned Additional District Judge, Shakargarh have ignored the Islamic law as well as legal dimensions of volunteer pledge made by the petitioner at the time of adoption and taking the child into his parental custody.
4. Although on behalf of the respondent Mr. Muhammad Ashraf Jilal's name is appearing in the cause list but despite repeated calls none entered appearance on behalf of the respondent No,1 therefore he was proceeded ex parte.
5. I have heard the learned counsel for the petitioner and have gone through record with his able assistance.
6. The first issue that needs to be considered in this writ petition is with regard to the laches.
Impugned judgment and decree was passed by the learned appellate court on 31-10-2008, whereas present writ petition was filed on 4-3-2010 after a period of more than 16 months.
Therefore laches should come into play and the writ petition could be dismissed on this ground alone. However, I am not inclined to do so merely on this technical ground, for the reason that the question of laches cannot be considered without considering the claim of each party in the writ petition. While considering the claims of the petitioner, I feel that a significant law point involved herein also attracts the question of public Importance, therefore, dismissal on technical grounds becomes insignificant and immaterial. In this regard reference is made to the law laid down in Pakistan Post Office v. Settlement Commissioner and others 1987 SCM R 1119 , wherein it was held that a writ petition could not be dismissed on ground of laches without examining the dictates of justice in the claim of each party apart from examination of law and jurisdictional points involved in the 'case. The above judgment was also followed by this court in Muhammad. Ismail v. Deputy Settlement Commissioner and others (NLR 1992 UC 725).
7. From the facts of the case in hand the moot point which requires consideration by this court is 'whether an adopted child would be entitled for maintenance allowance from the adoptive father'.
8. Before considering the law I would like to highlight some admitted facts of this case. Petitioner was adopted by respondent No,1 and his wife while the petitioner was of very tender age (about one and half month) and the adoptive parents brought up adopted child as their own daughter and also acknowledged and presented her before public at large as their own daughter. So it is neither disputed nor doubted that petitioner was the adopted daughter of the respondent No,1.
9. With regard to the concept of adoption in Islam, we can seek guidance from Sunnah of Prophet Muhammad (P.B.U.H.). At the time of prophet's marriage (P.B.U.H.) with Hazrat Khadijah (R.A.), she gave a slave namely Zayd Bin Haritha to Prophet Muhammad (P.B.U.H.) and the Prophet Muhammad (P.B.U.H.) took good care of him and their relationship changed from that of master and a slave into one of father and son. Zayd was one of the first persons to have accepted Islam.
When his father and uncles came to know about his whereabouts, they came to Mukkah and told Prophet Muhammad (P.B.U.H.) that Zayd had been captured by some thieves and sold into slavery.
The Prophet set him free, but Zayd refused to leave Prophet Muhammad (P.B.U.H.) and go home with his father. Haritha the father of Zayd, became very angry and openly declared that from now on "Zayd is not my son". The Prophet immediately responded by adopting Zayd. Zayd came to be known as Zayd Bin Muhammad.
10. This continued till after the Prophet Muhammad (P.B.U.H.) migrated to Medina. Zayd had grown up and was now a married man However, his marriage did not work out. Allah revaled some verses related to Zayd's divorce in which Almighty also talks about the issue of "re-naming" the adopted children. The Almighty says: "And Allah did not make your adopted children your sons. That is only your words coming out from your tongues. And Allah says the truth and He guides you to the right path. Call them with reference to their (real) fathers. It is more just in the sight of Allah".
(33:4)
' After the revelation of this verse, Zayd was again called Zayd Bin Haritha and not Zayd Bin Muhammad. However, this change in name did not affect the relationship of the Prophet Muhammad (PBUH) and Zayd. They were still like father and son.
11. What this mean is that adoption does not change the relationship of a person with his real parents and siblings, nor does it create a real relationship between him and his adoptive parents and their children. The practical implications of this view on the one hand is that all the rules which apply between blood relatives are still valid; for example the child will still be mahram; that an adopted child cannot marry his/her real siblings; he or she is also eligible for inheritance from the real parents; and there is no need for hijab between the child and his or her real family. On the other hand, the rules that apply between non-related persons are still valid. For example, adoption would not create the mahramiyya t between the child and the new family. In Islam, the right of inheritance is based on uterine relationship.
12. However, there is only one case of adoption where a sort of semi-familial relationship and mahramiyya t is created between the adopted child and the adoptive family: when the adopted child is below two years of age and is also breast-fed directly by the adoptive mother for at least a day and a night. This creates a foster rizai relationship, and the child is mahram to the new family- there is no need for hijab,, nor can the child marry the real children of the adoptive parents.
However, in case of inheritance, even a rizai child has no right in the estate of the adoptive parents.
But as mentioned above, the adoptive parents can write up to one-third of their estate for their adopted child.
13. In the case at hand, there is no evidence on record whether the minor was breast-fed by the wife of respondent No, 1 or not. However, evidently both respondent No,1 and his wife did not have any other siblings of their own, therefore, it can be safely presumed that minor had no rizai relationship.
14. From the above resume of discussion, the analogy emerges as follows:
(i) Adoption is allowed in Islam.
(ii) However, changing the family name of the adopted child is not allowed.
(iii) If the child was two years old or less and was also breast fed directly by the adoptive mother for at least a day and a night (or fifteen times consequently), then the child will become mahram to the new family.
(iv) If the child was not breast fed as mentioned above, then he or she will remain non-mahram to the new family.
(v) Adoption in rizai or non rizai form does not give the adopted child a right to inherit the estate of the adoptive parents; nor does it deprive him or her from inheriting the estate of the real parents.
' However, the adoptive parents have the option of writing up to one-third of their estate for their adopted child., ' Keeping in view the above position of adoption in Islam, one can state that petitioner cannot claim any maintenance from the respondent No,1 . There is nothing on record to show that the minor is a rizai daughter of the respondent No,1 under which petitioner may have a right to claim maintenance from the adoptive father. However, there is another angle of the matter which entitles the petitioner to claim maintenance allowance from respondent No, 1.
15. Islam not only commands for magnanimity and clemency amongst weaker segments of society, but also categorically ordains to help poor, needy and more particularly orphans. In all forms of charities, destitute orphans and poor can be categorized to be the prime eligible recipients for special care and affection. In case of the rights of the orphan children, Allah is very severe; for example Almighty says: "Those who swallow the property of the orphans unjustly, are actually devouring fire into their bellies and they shall enter the burning fire"
' Islam fully supports the concept of helping the orphan and poor regardless of their gender, color, caste and creed. If there is none to take care of orphans and poor children, then this becomes the onerous responsibility of an Islamic State.
16. If the adoptive parents voluntarily undertake before public at large to perform the noble task of taking care of the minor(s) as a matter of fact by doing so they not only create relationship of trust with the minor(s) but also assume the role and status of 'constructive guardian' of the minor. This trust and constructive guardianship also creates fiduciary obligation/relation between the adopted parents and the minor. In Equity, Trusts and Specific Relief, 5th Edition, B.M. Gandhi states that "A fiduciary is a person in a position of trust, or occupying a position of power and confidence with respect to another such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he has to protect..."
' Similarly in case titled The Bell Group Ltd (in liq) v. Westpac Banking Corporation (No,9) (2009) 70 ACSRI, Owen J. While dealing with the fiduciary obligations states; "In my view the state of the law is this. Where a person has undertaken to act in the interests of another and where the nature of that relationship, its surrounding circumstances and the obligations attaching to it so required, it will be held to be fiduciary. But the fact that it is categorized as fiduciary does not mean that all of the obligations arising from it are themselves fiduciary. Unless there are some special circumstances in the relationship, the duties that equity demands from the fiduciary will be limited to what I have described as the core obligations: not to obtain any unauthorized benefit from the relationship and not to be in a position of conflict. They stem from the fundamental obligation of loyalty".
17. From the above quoted excerpt it can be easily decipherable that essence of fiduciary obligation is that the fiduciary is precluded from acting in any other way than in the interests of the person to whom the duty to so act is owed. In short, the fiduciary obligation is one of undivided loyalty.
18. The doctrine of constructive guardian has long been a part of the law of guardian and ward and has been rejected by only two cases. The situation arises where one assumes to act as a guardian or enters upon an infant's estate, who has not been regularly appointed a guardian. It may result from a voluntary assumption of the duties, a void appointment by a court without jurisdiction, or acts performed by one who was by himself and other parties concerned, considered an "accommodation guardian". Recognition of the need for protection of the infant resulted in giving the infant an election to treat such a person as a wrongdoer or as a guardian. In later case a relation similar to that of trustee and cestui que trust is established and the guardian de son tort may be compelled to account as a guardian.
19. Adverting to the facts of the lis at hand, petitioner was admittedly adopted by respondent No,1 and remained with the adopted parents for a considerable period. In his evidence, respondent No,1 has admitted that minor was adoptive and was presented as his daughter before the public at large. For all intents and purposes these acts of the respondent No,1 have created relationship of trust and constructive guardianship between the respondent No,1 and the minor. This K relationship also implies the duties/fiduciary obligations to be performed by the respondent No,1 which inevitably include the maintenance of the minor.
20. The doctrine of Al-Luqata relied upon by the petitioner counsel relates to the lost and found articles and therefore, not relevant to the facts of the case. The minor child was never "found" by the respondent No,1 and his wife rather was admittedly adopted by them.
21. In view of what has been discussed above, this petition is allowed and impugned appellate judgment and decree dated 31-10-2008 is hereby set aside with the consequence that judgment and decree of the L learned Family Court dated 2-4-2008 is upheld and restored.
22. Before parting with this judgment, I must appreciate the vital contribution of Mr. Qaisar Abbas, Research Officer, of this Court for his painstaking research and valuable assistance for accomplishing the judgment.