MUHAMMAD NAEEM ANWAR, J.---The petitioner, being father-in-law of respondent No.1 and paternal grandfather of respondents Nos.2 to 6, through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has questioned the order of learned Family Judge-I, Bajaur dated 06.10.2022 directing him to pay interim maintenance allowance to his grandchildren (respondents Nos.2 to 6) @ Rs.2,000/- per month to each minor under the provision of section 17-A of the West Pakistan Family Courts Act, 1964.
2. Learned counsel for the petitioner contended that the learned trial Court has failed to determine the financial status of the petitioner while directing him to pay the interim maintenance Rs.2000/- per month to each minor. He also contended that the petitioner is aged about 78 years himself is dependent upon his son and thus cannot provide any maintenance to the minors/respondents. In support of his submissions, he placed reliance on the judgment of the Hon'ble Lahore High Court dated 26.04.2012 rendered in W.P. No.22305 of 2010 titled "Abdul Majeed v. A.D.J. etc." reported as PLD 2012 Lahore 445.
3. Conversely, learned counsel for the respondents supported the impugned order and requested for dismissal of the instant petition.
4. Arguments heard and record perused.
5. It appears from record that the learned Judge Family Court has tentatively assessed the maintenance allowance of the minors with directions to their grandfather/ petitioner to pay the same especially, when his son (father of minors) is dead. Insofar as financial status of petitioner is concerned, his son namely Muhammad Tayyab contended that his brother namely Shah Faisal who was husband of respondent No.1 and father of the minors/ respondents had died on 27.12.2017 and that respondent No.1 (widow of his deceased brother) is intending to enter into a second marriage. Be that as it may, this is the matter which requires proper appreciation of evidence but it is significant to mention here that respondents Nos. 2 to 6 being minors are living with their mother/respondent No.1 cannot be deprived of their interim maintenance by the grandfather, the petitioner. This Court was apprised by Muhammad Tayyab, son of the petitioner, that respondent No.1 along with her children have left the house of petitioner where they were living in a joint family system and were being properly maintained by the petitioner within his resources and now, they are residing with brother of respondent No.1. In such circumstances, it has become more important for the petitioner to provide maintenance to his grandchildren/ respondents as they cannot be left unattended and insofar as the quantum of maintenance allowance is concerned, same shall be. determined by the learned trial Court after recording of evidence. During the course of arguments, petitioner No.2 further submitted that in fact respondent No.1 is intending to get share of her husband in the property of her father-in-law (the petitioner). This is another aspect which may be attributed towards proper maintenance of all the respondents including respondent No.1 but at this stage, this Court is unable to give any findings in that respect. The interim order pertains to the maintenance allowance of the minors which cannot be interfered unless there is an illegality or lack of jurisdiction by the learned lower forum.
6. The question before this Court is as to whether the grandfather could be held liable to pay maintenance allowance to his grandchildren? The answer to above question is that under Islamic law, a grandfather can be held liable to pay maintenance to his grandchildren it certain conditions are met. In general, maintenance (nafqah) is a right that is granted to certain family members under Islamic law, including children, parents, and spouses. This right requires that the person who is responsible for providing maintenance, usually the father or husband, must provide financial support to the dependent family member (s) to cover their basic needs such as food, clothing, and shelter. As for the case of grandchildren, the responsibility for providing maintenance falls first on their father, and if he is unable to provide or not alive then it falls on their paternal grandfather. This is based on the principle of "nearer in degree" (qarabah), which means that the closer family member is responsible for providing maintenance before the more distant one. However, it is important to note that the grandfather's responsibility for providing maintenance to his grandchildren is not absolute. and may vary depending on the circumstances. It is important to note that the extent of a grandfather's responsibility for providing maintenance to his grandchildren will depend on various factors, including the financial situation of the grandfather, the needs of the grandchildren, and the availability of other sources of support. In some cases, a grandfather may be exempt from this obligation if he is unable to provide for his own basic needs or is facing other financial difficulties. Overall, the determination of a grandfather's liability for providing maintenance to his grandchildren will depend on the specific circumstances of the case and the interpretation of Islamic legal principles by family judge but this shall be decided after recording of evidence. In the case of "Haji Nizam Khan v. Additional District Judge, Lyallpur and others" (PLD 1976 Lahore 930) wherein it was held that: "It is from the above main provisions of the Islamic Law on the question of the obligations and rights of the opulent and needy relations in Muslim society that as corollary it has been unquestionably accepted that a grandfather in easy circumstances is bound to maintain and support his needy grandchildren."
Reliance may be placed on the case of "Abdullah v. Jwaria Aslam and 2 others" (2004 YLR 616) wherein it was held that: "Even if the custody of minor is with mother, father or grandfather is bound to maintain sons, until they attain age of puberty and daughters; until they are married, father or grandfather not bound to maintain adult sons, unless disabled by infirmity or disease".
Likewise, in the case of "Muhammad Anwar Khan v. Sabia Khanam" (PLD 2010 Lahore 119), it has been held as under: "Liability of the grandfather to pay maintenance for the minor would include past maintenance as well as future maintenance as the grandfather was responsible to maintain 'his grandchildren in absence of the father or on the inability, of the father to maintain his children."
7. More-so, the petitioner has not deposited the interim maintenance of the minors in terms of the direction of the learned trial Court, which resulted into striking off his defence and ex-parte proceedings. We have been apprised that an application for review was submitted which has also been turned down and now the application for setting aside of the ex-parte proceedings is still pending adjudication. Be that as it may, the learned trial Court shall decide all the aspects but in accordance with law whereas, learned counsel for the petitioner has not been able to point out any illegality committed by the learned trial Court while passing the impugned interim order qua the jurisdictional defect.
8. Thus, for the reasons discussed above, the instant petition, being devoid of merits, stands dismissed in limine.