Tariq Saleem Sheikh, J. On 20.1.2017 Petitioner No.1 married Respondent No.2 and out of the wedlock a son was born who was named Muhammad Ibrahim (Petitioner No.2). He is suffering from a medical condition called the growth hormone deficiency (GHD) and is about three years old now. The doctors told the couple that there was little chance that they would ever have a normal baby owing to some genetic reasons. Allegedly Respondent No.2 got very agitated and turned the Petitioners out of his house. Forsaken and abandoned, they filed a suit for recovery of maintenance allowance in the Family Court at Lahore which was decided in their favour vide ex parte judgment and decree dated 03.12.2020. Respondent No.2 claims that he had no notice of that suit. Anyway , shortly thereafter he divorced Petitioner No.1 and on 15.3.2021 moved an application for setting aside the aforementioned judgment and decree. The Family Court directed him to deposit certain amount which he did whereupon, vide order dated 22.6.2021 (the "Impugned Order"), it suspended the decree subject to the condition that he would pay interim maintenance at the rate of Rs.4000/- per month to Petitioner No.2 till the case is decided. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioners seek enhancement of the interim maintenance.
2. The counsel for the Petitioners contends that the Family Court has fixed the interim maintenance in a slipshod manner without hearing the Petitioners and appreciating the peculiar circumstances of the case. According to him, Petitioner No.2 requires medical treatment which costs about Rs.30,000/- per month and must be continued till he gets 18. Respondent No.2 is under a legal, moral and religious obligation to pay that sum. There can be no compromise on this issue as it is a question of the minor 's health and life.
3. The counsel for Respondent No.2 contends that this constitutional petition is not maintainable inasmuch as it is directed against an interim order . On merits he submits that Respondent No.2 is self-employed earning Rs.20,000/- per month on average. He is the only son of his parents who are old and infirm and dependent on him. He cannot afford medical treatment of Petitioner No.2. Even the interim maintenance fixed by the Family Court is beyond his capacity . The counsel urges that Petitioner No.1 should be asked to shoulder the responsibility for the minor 's treatment as she is his mother .
4. Heard. Record perused.
5. The Family Court has passed the Impugned Order under section 17A of the Family Courts Act, 1964, which reads as under: 17A. Suit for maintenance.- (1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.
(2) In a decree for maintenance, the Family Court may:
(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and
(b) prescribe the annual increase in the maintenance.
(3) If the Family Court does not prescrib e the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year .
(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.
6. The general rule is that the constitutio nal jurisdiction of the High Court cannot be invoked against an interim order . The party should wait till it matures into a final order and then assail it before the forum provided by law for examining such order . In Muhammad Touseeq Danial v. Ayesha Naeem and 2 others (2021 MLD 337) the Islamabad High Court specifically held that the quantum of interim maintenance cannot be challenged in the constitutional jurisdiction of the High Court. In Dr. Muhammad Jawad Jan Arif v. Dr. Ayesha Chaudhry and 2 others ( 2022 CLC 89 ) a learned Single Judge of this Court made the following observations: "Does the Family Court have unfettered and unbridled powers to fix interim maintenance at its discretion? The answer , of course, is no, the concept of subjective discretion having been judicially buried! The Court may, therefore, broadly look into the social status of the parties, the earning of the defendant, his capacity to pay, the requirements of the minor and on this touchstone fix interim maintenance. It may also be noted that no right of appeal etc. has been provided against such a determination, because the order is tentative and interim in nature.
The Court has uninhibited powers to enhance or decrease the quantum of maintenance eventually after appraising, deciphering and examining the evidence produced during trial. Therefore, findings qua interim maintenance normally cannot be interfered with, if the same are fixed upon the parameters stated above."
7. This case, however , has some peculiar facts owing to which this petition cannot be thrown out. This Court must invoke its parens patriae jurisdiction to save the child.
8. Parens patriae is a Latin term which means "parent of the country ." This doctrine postulates that the government is the ultimate guardian of all the people under a disability , especially children and mentally disordered persons.
Parens patriae must be distinguished from the loco parentis (Latin for "in the place of a parent") which refers to "a person who has put himself in situation of a lawful parent by assuming the obligations incident to parental relation without going through the formalities of legal adoption". Lord Eldon says that "a person acting in loco parentis is in the situation of the person described as the lawful father of the child." The doctrine of loco parentis is, for example, applied to authorize the educational institutions to act in the best interests of their students, and to allow a non- biological parent to exercise the rights and responsibilities of a biological parent.
9. The doctrine of parens patriae has its roots in English Common Law. Rosara Joseph writes: "It is based on a Royal Prerogative antedating the Statute De Prerogativa Regis , enacted about the year 1339 in the reign of Edward II. Theobald speculates that by general assent or by some statute, the care of persons of unsound mind was taken by Edward I from the feudal lords, who would normally take possession of the land of a tenant unable to perform his feudal duties. In the 1540s, the parens patriae jurisdiction was transferred from officials in the royal1 2 3 4 household to the Court of Wards and Liveries. That Court was wound up in 1660, and the Crown' s jurisdiction was thereafter exercised through the Lord Chancellor and some of the Judges to whom it was entrusted under the Sign Manual."
10. In Charan Lal Sahu v. Union of India (AIR 1990 SC 1480) the Supreme Court of India explained that connotation of the expression parens patriae differs from country to country . It said: "Parens patriae jurisdiction ... is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector . The connotation of the term 'parens patriae' differs from country to country , for instance, in England it is the King, in America it is the people, etc. The Government is within its duty to protect and to control persons under disability . Conceptually , the parens patriae theory is the obligation of the State to protect and take into custody the rights and the privileges of its citizens for discharging its obligations. Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens."
11. The doctrine of parens patriae is widely applied in today' s world. Albeit, on principle, it is an inherent power , some countries supplement it by legislative acts.
12. The High Court' s jurisdiction in respect of children has three facets. The first is the conventional role which it performs when it adjudicates family disputes like those relating to maintenance and guardianship. Second, habeas corpus proceedings which may involve recovery of children from illegal or improper custody of a person. The third facet is where the court assumes the rights and duties of a parent itself. John Seymour posits: "The important point is that, while a court deciding cases of this kind must be careful to protect the interests of the children involved, which can be done without putting on the mantle of a parent. Only when this step is taken does the court exercise the parental jurisdiction and so assume the rights and duties of a parent. At this stage, the court becomes a surrogate parent. It takes on a distinctive function. In the words of Viscount Haldane LC, a court exercising the parens patriae power is really sitting primarily to guard the interests of the ward ... Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction."
13. The High Court' s parens patriae jurisdiction is inherent. It is "derived from the right and duty of the Crown [State] to take care of those who are not able to take care of themselves - principally persons of unsound mind and children." In Re M & N (Minor), [1990] 1 All ER 205, W aite LJ . held: "[T]he prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages."
14. A survey of the jurisprudence of various countries shows that the High Court' s parens patriae jurisdiction has the following limitations: i) It is a special and extraordinary power so it must be exercised sparingly . ii) It cannot be exercised so as to conflict with a statute or rule. iii) When the court exercises parens patriae jurisdiction, the biological parents of the subject are not absolved of their parental responsibilities. iv) The subject' s welfare is the court' s paramount consideration.
15. In the present case, Petitioner No.2 requires protection of this Court. He needs immediate treatment. He cannot wait until his parents exhaust and stop wrangling. He has no time to watch the lawyers arguing to score a win.
Therefore, in view of the law discussed above, I proceed with this petition.
16. During the course of proceedings the Court was informed that Petitioner No.2 is under the treatment of Dr. Taeed Ahmad Butt, Professor of Pediatrics/Endocrinology , Fatima Memorial Hospital, Lahore. Accordingly , vide order dated 18.1.2022, he was asked to send a detailed report regarding the minor 's disease and the approximate money required every month to meet his medical needs and special diet, if any. On 31.1.2022 he submitted his report which is reproduced below:5 6 7 8 "My patient Ibrahim son of Hafeez Ullah age 3.5 years old resident of Lal Pul Faisal Park, Lahore has been diagnosed as case of growth hormone deficiency . He requires growth hormone treatment at least for next 10 years.
This is quite expensive treatment that includes growth hormone alongwith expensiv e investigations i.e. IGF 1 levels for follow-up. If the treatment is denied he may have physical and psychological problems which will affect his life later on.
"He is currently on inj. nordotropin (4 clicks) 0.8 unit/day . The cost of treatment is 14,000/- per month currently ."
17. On 9.2.2022 the Petitioner 's counsel presented to this Court a certificate issued by the Children' s Hospital, Lahore, under the hand of Dr. Jaida Manzoor , Professor of Pediatrics Endocrinology , which stated that the treatment of GHD was available there free of cost to the deserving patients. Thereupon this Court directed the Medical Superintendent of that hospital to submit a note regarding the process that the Petitioner would be required to follow to avail medical aid. On 14.2.2022, he submitted his note which stated: i) The treatment of GHD is available in the Children' s Hospital free of cost but the injections are currently out of stock. ii) Patients of GHD cannot be treated under the Health Card because it does not cover OPD. However , Pakistan Bait-ul-Maal provides financial assistance to them. The Petitioners can, therefore, apply to it. iii) There is a budgetary provision for Growth Hormone injections.
The Petitioners can also approach the Chief Minister Punjab for financial grant from the public exchequer .
18. In view of the above, Petitioner No.1 (Safiya Ishaq) is directed to take Petitioner No.2 (Muhammad Ibrahim) to the Medical Superintendent, Children' s Hospital, Lahore, on 16.2.2022 who shall facilitate her in obtaining financial aid for the treatment of GHD from the Pakistan Bait-ul-Maal in accordance with law, rules and policy . He shall also help the Petitioners when the Growth Hormone injections become available at the Children' s Hospital.
19. It is necessary to point out that the object of section 17A(1) of the Family Courts Act is to provide the plaintif f(s)
(women and children) some money durin g the pendency of the suit in order to lessen their sufferings and enable them to get on with their lives. In Ali Adnan Dar v. Judge Family Court and others (PLD 2016 Lahore 73) this Court laid down the following guidelines for the Family Courts for fixation of interim maintenance: "i) Maintenance allowance is indispensable right of the mother and children, so the order for grant of maintenance allowance must be passed at a 'convenient stage' of the proceedings. ii) Although section 17A of the ibid Act empowers the Family Court to pass an order for grant of interim maintenance allowance at any stage of the proceedings, in the normality of the circumstances, it must be passed after hearing 'both of the parties' unless the attitude and conduct of the defendant/father is evasive. iii) The order for grant of interim maintenance is made on the basis of tentative assessment of the material available on file and keeping in view the social status of the parties. Further , both the above, material available and social status, should be mentioned in the order for the grata of interim maintenance. Further the quantum of interim maintenance should be 'bare minimum' to meet the day to day needs of the recipient in the narrow context. iv) Although the family laws have been enacted to promote, protect and advance the rights of women and children yet at the interim stage, the version of the respondent/defendant be given a sympathetic or somewhat preferable consideration because, non-payment of interim maintenance allowance will cut throat of his invaluable right i.e. 'right to defence' and in consequential ef fects, children/women would be the losing and deprived parties. v) Further , if the case is not decided within the statutory period as given in section 12A of the West Pakistan Family Courts Act, 1964 either party may apply to the High Court for appropriate direction. However , the order for grant of interim maintenance shall hold the field unless reviewed by High Court under section 12A or Family Court itself reviews it at any stage as observed below . vi) Family Court, according to section 12A of the West Pakistan Family Courts Act, 1964, is under legislative direction to decide the case within six months. Although this provision is directive as no penalty/consequences are mentioned for non-compliance and in this regard reference is made to 2001 SCMR 1001 . But in case the matter is not decided within six months and the delay is due to the plaintif f party , then Family Court either on its own motion or on the application of the defendant/father review its earlier order for grant of interim maintenance allowance."9 The above guidelines were endorsed in Dr. Aqueel Waris v. Ibrahim Aqueel Waris (2020 CLC 131), and Muhammad T ouseeq Danial v . Ayesha Naeem and 2 others ( 2021 MLD 337 ).
20. In the instant case, the Family Court completely disregarded the above guidelines while passing the Impugned Order . The proper course for the learned Judge was to hear the Petitioners before fixing the interim maintenance but if he wanted to proceed immediately he should have examined the record. Inasmuch as an ex parte judgment had been passed in the suit earlier , the medical record of Petitioner No.2 was before him but he did not bother to look at it. Such a callous attitude cannot be approved. The Family Courts must be sensitive to the problems of the women and children litigating before them, particularly those having disability or a medical condition.
21. Going further , it is necessary to exam ine what duty the parents owe to their children qua maintenance. The Islamic law unequivocally proclaims that the father has legal and religious obligation to maintain them. Section 370 of the Principles of Mahomedan Law by D.F . Mulla states:
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 (S. 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 .
(2) If the father is poor, and incapable 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.
22. Hedaya is more elaborative. It says: "The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it (in the same manner as no person is admitted to be associated with a husband in providing for the maintenance of his wife), because the word of God, in the Koran, says, 'the maintenance of the woman who suckles an infant rests upon him to whom the infant is born' (that is upon the father), from which it appears that the maintenance of an infant child also rests upon the father , because, as maintenance is decreed to the nurse on account of her sustaining the child with her milk, it follows that the same is due to the child himself a fortiori ." The book further states that "a father and mother must provide a maintenance to their adult daughters (and also to their adult sons who are disabled), in proporti on to their respective claims of inheritance. The maintenance to an adult daughter , or to an adult son who is disabled, rests upon the parents in three equal parts, two-thirds being furnish ed by the father , and one-third by the mother , because the inheritance of a father from the estate of his son or daughter is two-thirds, and that of a mother one-third. The compiler of the Hedaya remarks that this is the doctrine of Khasaf and Hasan ."
23. Our courts have consistently held that maintenance of a minor child is primari ly the father 's obligation. If he is indigent and incapable of earning his own labour , the responsibility lies with the mother if she is in easy circumstances. The grandfather becomes liable on two conditions: firstly , the fathe r is impoverished and infirm and the mother is also hard up, and secondly , he (the grandfather) is in easy circumstances. In Mst. Rehmat Bibi v.
Muhammad Ali (PLD 1971 Lahore 151), while relying upon Verse 233 of Surah Al-Baqara, a Division Bench of this Court explained: "There is no doubt or dispute as to the primary and absolute responsibility of the father to maintain the child which the mother does not share with him provided the child is not possessed of property . Even in cases where the mother , being in a position to do so, has shouldered this responsibility , she can recover the amount spent by her as a debt from the father . Not only this, but she has also been considered to be within her rights to claim compensation from her husband for suckling the infant and can, in certain circumstances, even refuse to do so in which case the father , if possessed of sufficient means, has to make alternative arrangements by requisitioning the services of a nurse."
24. Inasmuch as "maintenance" has not been statutorily defined, case-law analysis shows that it includes not only the provision of food, clothing and housing, but also other necessary expenses to promote children' s mental and physical well-being. In Humayun Hassan v. Arslan Humayun and another (PLD 2013 SC 557) the Hon'ble Supreme Court of Pakistan held: "In this context, according to section 369 of the Muhammadan Law by D.F. Mulla, 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 exhau stive, 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 (sic) 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; but obviously corresponding to and commensurating with the means and the capacity of the father to pay ."
25. In Humayun Hassan' s case, supra, the apex Court was called upon to consider the question as to whether a father was bound to maintain his son after he had attained the age of majority unde r the codified law of the country .
It was held that he could be ordered in an appropriate case to provide for his basic education so that he could earn his livelihood.
26. In the present case, admittedly neither the mother (Petitioner No.1) nor the grandfather is in easy circumstances. Hence, Respondent No.2 has all the responsibility to provide for the child. The way he has abandoned him must be condemned. In Mst. Razia Begum v . Ghulam Rasul (1972 PCr .LJ 1286) this Court held: "... if a man does not work or does not earn enough to support his children, that in itself is no ground to justify his omission to supply them with reasonable maintenance because having brought them in the world. It is his bounden duty to provide for their maintenance."
Similar opinion was expressed in Muhammad Yusuf v. Shazia Bibi (1992 MLD 235); Muhammad Asad v. Mst.
Humera Naz and others (2000 CLC 1725 ) and Syed Zia ul Hasan Gilani v. Mian Khadim Hussain and 7 others ( PLD 2001 Lahore 188 ).
Disposition
27. In view of the directions issued by this Court in paragraph-18, above, the Impugned Order does not call for interference by this Court at this stage. Respondent No.2 contended that his average monthly income was Rs.20,000/- but he did not produce any evidence to substantiate it. Similarly , the counsel for the Petitioners also alleged certain things during the course of these proceedings - again without proof. Therefore, all questions of fact are left undecided. The parties may raise them before the Family Court in the manner prescribed by law. Lastly , I may add, nothing in this judgment shall be construed to absolve Respondent No.2 of his liability to maintain Petitioner No.2. If he has meager financial resources he must find means to enhance them.
28. This petition stands disposed of.
29. Above are the reasons for the short order dated 16.2.2022 passed in this petition. {{FOOTNOTE}} Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary , S&GAD, Karachi and another (1996 SCMR 1165); Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. (1998 SCMR 1961 ); Mohtarma Benazir Bhutto v. The State (1999 SCMR 1447 ); Noor Muhammad v. Member (Revenu e), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708); Crescent Factories Vegetable Ghee Mills and 5 others v.
National Bank of Pakistan, District Courts Branch, Sahiwal, and another (PLD 1985 Lahore 150); Muslim Commercial Bank Limited v. Judge Banking Court No.2, Faisalabad and 8 others (2002 CLD 991); Shahida Fazil v. Hina Tahir and 2 others (2017 YLR 622); and Faisal Afzal v. Chief Settlement Commissioner (Member Judicial-VIII), Lahore and 3 others ( 2021 YLR 977 ). Also see: Munir Alam v. Civil Judge/Family Court, Lahore and 2 others (2009 CLC 442); Abrar Hussain v.
Mehwish Rana and 3 others (PLD 2012 Lahore 420); Shahid Ali Gil v. Ruqayya Bano and 4 others (2015 MLD 265); Ali Adnan Dar v. Judge Family Court and others (PLD 2016 Lahore 73); and Muhammad Sajid v.
Judge Family Court and others ( 2020 CLC 1524 ). Lewis v . U.S., 105 F . Supp. 73 - Parent & C 15.10 1 2 3 Ex parte Pye, 18 V es. 140. (1881) Joseph, Rosara, Inherent jurisdiction and inherent powers in New Zealand, [2005] CanterLawRw 10; (2005) 11 Canterbury Law Review 220. John Seymour , Parens patriae and Wardship Powers: Their Nature and Origins, Oxford Journal of Legal Studies, Summer , 1994, V ol. 14, No.2, pp.159-188. Available at https://www .jstor .org/stable/764616 See note 5. See note 6. Mst. Sitwat Chughtai and another v. Judge, Family Court, Lahore, and another (PLD 2009 Lahore 18); and Abrar Hussain v . Mehwish Rana and 3 others ( PLD 2012 Lahore 420 ). Mudasra Sabreen, Maintenance of the Child in Pakistan: A Much-Needed Legislation. Available at: https://sahsol.lums.edu.pk/law-journal/maintenance-child-pakistan-much-needed-legislation.