AMJAD ALI SAHITO, J. Through instant constitutional petition, the petitioners have assailed concurrent findings, delivered learned Family Judge, Jacobabad, in Family Suit No.59/2017, wherein he has decreed the suit filed by the respondents Nos.1 to 3 (Re: Shrimati Reeta and others v. Raja Ram and others), directing the defendant/ petitioner No.1 to pay maintenance to the plaintiffs/respondents Nos.2 and 3 at the rate of Rs.3000/- each with increasing rate of 10 percent per year from August, 2017 till their marriage with further directions to hand over the gold ornaments to the plaintiff/respondent No.1 or to pay the market value of gold ornaments to her vide judgment and decree dated 29.03.2019, the same on being challenged before learned Sessions Judge, Jacobabad, in Family Appeal No.12/2019, endorsed the findings of learned Family Judge while dismissing such appeal vide order dated 07.01.2020.
2. Precisely, the facts of the case are that, plaintiff/respondent No.1 Shrimati Reeta married to Ravi Kumar (son of petitioner No.1) in the year 2012, and from such wedlock, she has two babies namely, Jasika and Sanika. The said Ravi Kumar committed suicide on 20.5.2017. It is further averred that after death of her husband, the respondent No.1/plaintiff Shrimati Reeta was driven out from house of her late husband by the respondents Nos.1 and 2, snatching her all dowry articles including gold ornaments.
3. Pursuant to summons issued by learned trial Court, the petitioners Nos.1 and 2 filed their joint written statement, denying the assertions of the defendant No.1. However, the relationship between the parties was not disputed by the petitioners.
4. From pleadings of the parties, the learned trial Court framed the issues and led their evidence.
Respondent No.1 Shrimati Reeta in support of her case examined herself and her brother. Whereas, Petitioner No.1 examined himself. Ultimately, after closing side by both the parties and hearing their counsel, the learned trial Court decreed the suit of the plaintiff/respondent No.1 to extent of grant of maintenance to the respondents Nos.2 and 3 at the rate of Rs.3000/- per month with increase of 10 percent per year, as well as return of gold ornaments to Shrimati Reeta (respondent No.1) or paying her its market value by the petitioner No. 1. However, said Shrimati Reeta simply withdrew the claim of dower by filing such statement and further demanded maintenance of the minor babies. The record further reveals that, against the judgment and decree of learned trial Court, the petitioners filed Family Appeal before learned District Judge, Jacobabad, which too was dismissed, hence instant constitutional petition.
5. The record reflects that on failure of the petitioner No.1 to comply with directions passed in judgment and decree in execution proceedings, the petitioner No.1 was taken into custody by learned trial Court during pendency of instant constitutional petition before this Court and subsequently the petitioner No.1 was released on execution of personal bond vide order dated 16.08.2021 passed by this Court.
6. Learned counsel for the petitioners has agitated only two grounds; firstly that the Family Court was not competent and/or had jurisdiction to entertain such suits of Hindu wife for maintenance and secondly that as per Hindu Personal Laws, the respondents Nos.2 and 3 are not entitled to claim maintenance from grand-father i.e. petitioner No.1; that these points were not considered by learned trial as well as Appellate Court(s) and the suit of the respondents Nos.2 and 3 was decided in accordance with Hindu law which was upheld by learned Appellate Court.
7. Conversely, learned counsel for the respondents argued that the relationship between the parties is not disputed and that the orders passed by learned Courts below being well reasoned, do not call for any interference by this Court, therefore, the instant petition filed by the petitioners may be dismissed.
8. So-far as first contention of learned counsel for the petitioners is concerned, suffice it to say that the learned Appellate Court has already taken into consideration the point of jurisdiction of learned trial Court and has rightly observed that the "cases relating to marriage and family affairs of non-Muslims including Hindus not excluded from ambit of Section 5 of West Pakistan Family Courts Act, 1964 and said Act does not come into conflict with Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1946." And, in this regard the learned Appellate Court has placed its reliance upon case of Mulchand v. Shrimati Indra and others reported in PLD 1985 Karachi page 362.
9. The second contention of learned counsel for the petitioners is to the effect that as per Hindu Personal Laws, the respondents Nos.2 and 3 are not entitled to claim maintenance from grand- father is concerned, it has been observed that, no doubt according to Section 20 of the Hindu Adoption And Maintenance Act, 1956, a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents, while as per Section '21 of the said Act, the grandchildren come within the definition of "dependant" of grand-father.
However, so-far as their maintenance is concerned, subsection (iv) of Section 21 (supra) articulates that grandchild is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate, and in the case of a great-grand son, from the estate of his father or mother or father's father or father's mother and that the heirs of deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. In the instant case, admittedly the deceased father of children did not leave any estate enabling them to have maintenance from the estate left by him. While, as per Section 547 of the Principles of Hindu Law Maintenance (By Mulla Hindu Law 18th Edition), a grandfather is under no personal obligation to maintain his grandsons or grand-daughters.
10. Furthermore, learned counsel for the petitioners contended that the petitioner No.1 is an aged and infirm person having no source of income and even he does not have own residence but he lives in Mandir/Dharam Shalla", and that this fact can 'be affirmed from the report submitted earlier before learned trial Court in execution proceedings.
11. The grand-father of minor children i.e. petitioner No.1 (Raj Ram) is stated to be a very poor person, having no source of income and even does not have his own house. Whereas, mother of minors i.e. respondent No.1 (Shrimati Reeta) being widow and household lady is also stated to have no source of income. As such, both of them are not in a position to maintain the minor children. In these circumstances, it would be only the State which include Federal and Provincial, and its departments i.e. Pakistan Bait-ul-Mal, Social Welfare Department, Zakat and Ushr Department, who would provide assistance to poor and needy persons under the different "heads" on regular basis in order to accommodate them in respect of their at-least day-to-day expenses etc. These departments of the Federation and the Province are supposed to provide assistance to the needy, the indigent and the poor particularly orphans, widows, handicapped and disabled persons.
12. Under Article 35 of the Constitution of Islamic Republic of Pakistan, 1973, the State is responsible to protect the family, the mother and the child. The Federal and Provincial Government(s) are also under constitutional obligation to establish institute(s) at large scale to regulate the affairs of un- attended children in the light of the mandate of "Holy Quran" and Sunnah of the Holy Prophet (P.B.U.H). Whereas, Article 37 of the Constitution puts responsibility upon the State to promote the social justice and to eradicate social evils and in view of Article 38 of the Constitution, the promotion of social and economic well-being of the people is again the duty of the State.
13. In case of (Sohail Muhammad Shees Farooq v. Mst. Minza Roomana and another) reported in 1998 MLD 1972, it was held that in the family matters, it is the Social Justice and not a Legal Justice, which is to be advanced and such is also the obligation of State under the Principles of Policy, as provided in the Constitution, which charges the executive to advance social justice and eradicate evil and protect weakest section of the society.
14. In the wake of above situation, in order to ascertain as to what are policies aria 'plane for provision or assistance to poor and needy persons through aforesaid departments of the State, the Deputy Commissioner, Jacobabad, was called in Court and on his behalf the Assistant Commissioner, Jacobabad put his appearance and submitted that, no funds of financial assistance have been placed under any "head" by the government at disposal of the office of Deputy Commissioner, Jacobabad. He, however referring to provisions of Pakistan Bait-ul-Mal Act, 1991, submitted that Bait-ul-Mal Board would be in a position to provide financial assistance to the respondent/minors.
15. As already observed that it is the State, who has to provide basic necessities of life such as food, clothing, housing, education and medical relief for all citizens, irrespective of their sex, caste, creed or race, who are permanently or temporarily unable to earn their livelihood on account of sickness or unemployment or circumstances beyond their control. It is also the State to protect the family, the mother and the child and to promote social and economic well-being of the people. And, in this context the Government of Pakistan beside other departments has established "Pakistan Bait- ul-Mal" for providing funds/assistance to destitute and needy widows, orphans, invalid, infirm and such other persons, and thereby save them from hardship and suffering and to enable them to lead a comfortable/honorable life in the society.
16. A bare perusal of Section 4(a) of Pakistan Bait-ul-Mal Act, 1991, reflects that the money in the Bait-ul-Mal shall be utilized for certain purposes including financial assistance to destitute and needy widows, orphans, invalid, infirm and other needy persons. It would be conducive to reproduce Section 4(a) of Pakistan Bait-ul-Mal Act, 1991, which reads as under:
(4) Administration of Bait-ul-Mal.---The Bait-ul-Mal shall be administered by the Board and the moneys in the Bait-ul-Mal shall be utilized for the following purposes namely:-
(a) to provide financial assistance to destitute and needy widows, orphans, invalid, infirm and other needy persons; (b)....
(c) ....
(d) ....
(e) ....
(g) ....
(h) ....
(i) ....
17. It is re-iterated that, since the grand-father of minor children (petitioner No.1) is stated to be a very poor person having no source of income and house, while mother of minors i.e. respondent No.1 (Shrimati Reeta) being widow and household lady is also stated to have no source of income, as such, both of them are not in a position to maintain the minor children. In these circumstances, it would be only the State which includes Federal and Provincial Governments, who would provide financial assistance to the minors on regular basis in order to accommodate them in respect of their at-least day-to-day expenses etc; and to save them from hardship and suffering, enabling them to lead comfortable/honorable life in the society.
18. Accordingly, the Pakistan Bait-ul-Mal, Government of Pakistan, is directed to register both minors namely Jasika and Sanika (daughters of Ravi Kumar) as regular beneficiaries from Bait-ul- Mal Pakistan to pay Rs.10,000/- to each minor on monthly basis without fail continuously till their marriage with annual increase of 10 percent, commencing from December, 2022 through their mother Shrimati Reeta wife of Raj Kumar daughter of Vishandas. The compliance report of payment to the minors, to be furnished before the Additional Registrar of this Court positively on or before 10 of calendar month.
19. Simultaneously, the Secretaries to Government of Sindh, Woman Development Department and Minorities Affairs Department, Government of Sindh, are also directed to take up the case and consider widow lady Shrimati Reeta and her minor children for their regular financial assistance on monthly basis, which would be in addition to the maintenance by Pakistan Bait-ul-Mal.
20. It is also expected that the President of Hindu Panchayet Jacobabad would also be kind enough to extend financial assistance to the widow lady Shrimati Recta and her minor children.
21. The office is directed to send copy of this order to all the concerned for information and compliance.
22. The instant constitutional petition stands disposed of in above terms.