MUHAMMAD AFZAL CHEEMA, J.--The sole question which falls for determination in this plaintiff's second appeal is whether a widow would be entitled to past maintenance of her son from the latter's grandfather during the period of hizanat under Islamic Law. The facts giving rise to the case are that Shabir Ali, husband of Mst. Rehmat Bibi appellant, was murdered in the holocaust following on the wake of Partition, when the family was migrating from India to Pakistan. The other members, namely, the appellant, her minor son, Mushharaf Ali and her father-in-law, Muhammad Ali (respondent) succeeded in entering Pakistan and settled in Lahore. It appears that the appellant could not get on well will her in-laws and they soon fell out. Consequently, she left their house and came to stay with her parents who also resided in Lahore. From 1947 to 1951, the minor lived with her mother, but some time in 1951 the respondent succeeded in persuading him to leave the appellant to live with him instead. Having thus lost the custody of the minor, the appellant applied to the Magistrate for issuing a warrant under section 110, Cr. P. C. for the recovery of her minor son who was recovered and on production in Court was handed over to the appellant by the order of the learned Magistrate. Feeling aggrieved, the respondent filed a revision petition before the Sessions Judge which was dismissed on the 16th of October 1952. It appears that differences between them were patched-up through the intervention of some relations and the appellant returned to the house of the respondent. The reconciliation proved only short-lived and she again left the house of the respondent along with her minor son. The respondent moved the Guardian Judge for the custody of the minor. A separate application was also moved by his wife. Both these applications were dismissed by the learned Guardian Judge by a single order. Feeling aggrieved, the respondent filed R. F. A. No, 2 of 1954 in the High Court which was accepted on the 31st of May 1954, on the ground that the minor had attained the age of seven years and the period of mother's hizanat being over, the grandfather was entitled to the custody of the minor which was actually handed over to him.
2. It was at this stage that the appellant filed Civil Suit No, 165/1 giving rise to the present R. S. A. In this suit, which was instituted on the 19th of October 1959 in forma pauperis, a three-fold claim was made by the plaintiff against the respondent.
Firstly, a sum of Rs, 5,000 was claimed on account of the past maintenance of Mushharaf Ali, minor, from January 1948 to the 31st of May 1954 at the rate of Rs, 55 per mensum, which precisely works out to Rs, 4,325. Secoidly, a sum of Rs, 3,370 was claimed as the price of her jewellery, furniture, garments, etc., which were alleged to have been forcibly retained by the respondent when she left his house. Lastly, a sum of Rs, 312.8 was claimed as her 1/8th share of the property of her deceased husband, Shabir Ali. The trial was held on the following issues :- (1)Did the defendant appropriate to his own use the plaintiff's goods including clothes, ornaments etc.?
(2)If so, what is the value of the said goods?
(3)If issue No, 1 is proved, what amount is the plaintiff entitled to recover from the defendant?
(4)Did the defendant appropriate to his own use the property including cash of the deceased husband of the plaintiff?
(5)If so, what was the value of the property and what amount is the plaintiff entitled to recover from the defendant?
(6)Is the plaintiff entitled to recover from the defendant any amount by way of maintenance of Mushharaf Ali? If so, what sum?
(7)Is this suit within time?
(8)Relief.
Issues Nos, 1 to 5 were answered in the negative, mostly for want of evidence. On particular issues relating to jewellery and dower, it was held that no details had been given and the evidence was intrinsically weak. On the last issue, which formed the subject-matter of the present appeal, namely, the appellant's entitlement to arrears of past maintenance of her minor son, it was found, firstly, that the appellant had adduced no evidence as to the means of the respondent to make payment of arrears of maintenance, and, secondly, that no such claim could be allowed unless there was specific agreement to that effect. It was also found that she herself had deprived the respondent of an opportunity to maintain the minor, having sought his custody through the intervention of the criminal Court. Towards conclusion, it was also observed that such a huge claim should not have been allowed to be agitated in forma pauperis. Consequently, the suit was dismissed by the Senior Civil Judge, vide his judgment dated the 9th of July 1960. The judgment and decree were challenged by the appellant directly in the High Court by filing R. F. A. No, 2/54 as under the law, as it then existed, it was beyond the pecuniary jurisdiction of the District Judge. Here, again, permission was sought to file an appeal in forma pauperis which was dismissed by the order of Bashir Ahmad, J., dated the 10th of November 1960. Feeling aggrieved, the appellant filed L.
P. A. No, 219 of 1960 which was accepted by a Division Bench, vide its order dated the 21st of September 1961, allowing the appellant to file the appeal in forma pauperis. In the meantime, however, as a result of a change in law, the necessary pecuniary jurisdiction was re-conferred on the District Judge, who ultimately transferred the appeal to Ch. Hameed Ullah, Additional District Judge, Lahore, which was dismissed, vide impugned judgment dated the 27th of February 1963.
Feeling aggrieved, the appellant filed the present R. S. A. which was originally registered as civil revision, but was, later, converted into an appeal as a result of the withdrawal of the amendments of the C. P. C. by means of Act III of 1963.
3. Learned counsel for the appellant raised the following contentions before us :- (1)That in the absence of any specific prohibition, it should be presumed that a grand-child would be entitled to arrears of his past-maintenance; (2)that the finding of the Courts below that a grand-child would not be entitled to arrears of past- maintenance in the absence of an agreement to that effect was contrary to law. Reliance was placed on section 370 of Mulla's Muhammadan Law and Dinsab Kasimsab v. Mahamad Hussen Dinsab and .another AIR 1945 Born. 390 and Moosa Seethi v. Mariyakutty AIR 1954 P C 432; (3)that the finding of the Courts below on issue No, 6 on the alleged ground of vagueness of the claim and want of evidence on the respondent's capacity to pay proceeded on misreading of evidence inasmuch as a specific amount for the period of 89 months from January 1948 to 31st of May 1954 had been claimed at an approximate rate of Rs, 55 per mensem which the respondent had never pleaded his inability to pay on account of poverty.
4. On the countrary, it was contended on behalf of the respondent that a grand-child was not entitled to arrears of past-maintenance. Reliance was placed in this regard on Hedaya by Hamilton, II Edition, page 148, Islamic Law by Aziz Ahmad, section 353, page 304 and Mst. Ghulam Fatima v. Sh. Muhammad Bashir. It was next contended that the concurrent finding of the Courts below, that no evidence, whatever, had been led by the plaintiff-appellant as to the respondent's means or assets and that he had all along been anxious to maintain the minor as clearly established by his claim to his custody, recognised by the High Court vide its judgment, dated the 31st of May 1954, was unexceptional. Lastly, that, if at all, the liability of maintenance was to be shared proportionately between the mother and the grandfather, the latter being responsible only to the extent of 2/3rd and not beyond that.
5. A perusal of the impugned judgment shows that the finding given by the trial Judge on issue No, 6, relating to the plaintiff-appellant's entitlement to recover from the defendant-respondent any amount by way of the minor's maintenance, was alone challenged. In fact, the decision by the Division Bench of the High Court in the L. P. A., culminating in the impugned judgment, was also confined to this legal issue. Although their Lordships had clearly expressed their dissatisfaction with the Single Bench decision in Mst. Ghulam Fatima v. Sh. Muhammad Bashir, which ruled that except in case of an agreement in writing no suit for past-maintenance lay under Muslim Law, and had indicated their preference for the contrary view expressed in Dinsab Kasimsab v. Mahamad Hussen Dinsab and another, a D. B. authority, the learned Additional District Judge, adopting the path of least resistance, in a single sentence, disposed of the appeal on the basis of Mst. Ghulam Fatima v.
Sh. Muhammad Bashir. It was observed :- "The ground on which the piaintiff's claim was disallowed, received support from PLD 1958 Lah.
596. The appeal is thus without substance and the same is dismissed with costs."
6. It is thus clear that the controversy or the conflict of views on the legal issue of entitlement to past-maintenance was not touched and, therefore, remained unresolved. Before proceeding to discuss this issue, however, we would like to dispose of a preliminary point raised on behalf of the respondent that no evidence, whatever, had been led by the appellant as to the respondent's assets and means of income to show that he had the capacity to make payment of arrears of maintenance. No doubt it was not specifically asserted by the appellant in her plaint that the appellant had the necessary means to make payment of the amount claimed, nevertheless, an implied assumption in regard to the capacity of the respondent to pay could be spelt out and, as such, it was for the latter to have clearly and categorically denied this position if he had chosen to do so. lie did not say a word about this in his written statement. Even otherwise, a reference to the record of the earlier litigation between the parties over the custody of the minor clearly shows that in his grounds of appeal dated 20-10-1952 filed by the respondent against the order of the Guardian Judge, he categorically asserted that the appellant was poor and as such unable to maintain the minor. Thus it is clear that his claim to the custody of the minor was based on an1 implied superiority of his financial position. The matter could also be looked from another point of view. Admittedly the appellant filed the suit in forma pauperis and was declared to be a pauper which order was never challenged by the respondent. By subsequent improvement of her financial condition she could also be de-pauperised. But it is evident from the record that even the L. P. A. was filed by her in forma pauperis. Thus the fact of the appellant being a destitute stands established beyond doubt and even if it is assumed that the respondent was equally necessitous, in the ultimate analysis the position will very much remain the same as we shall presently discuss.
7. This brings us to the real point in issue, namely, whether the appellant was entitled to receive past-maintenance of her minor son, the grand-son of the respondent, whom she had maintained during the period of hizanat. The facts in the case of Mst. Ghulam Fatima v. Sh. Muhammad Bashir were that Mst. Ghulam Fatima appellant, who had gone in for a second marriage after she had been divorced by Sh. Muhammad Bashir respondent, had a minor daughter from him who was about six years of age at the time of divorce and continued to live with her in the house of her step- father. The respondent claimed the custody of his daughter while the appellant applied for her appointment as guardian of the minor. The Senior Civil Judge held that it was in the interest of the minor that she should live with her mother till the age of thirteen. Accordingly, Mst. Ghulam Fatima was allowed to retain the custody of the minor till 20-11-1953, which, thereafter, was to be handed over to the father. The respondent appealed to the High Court. The High Court accepted the appeal to the extent that the minor was ordered to be restored to the father on the 1st of April 1953 instead of the 20th of November 1953. Having lost the custody of the minor, the appellant instituted a suit for recovery of Rs, 900 on account of the minor's maintenance for three years next preceeding the Institution of the suit. The suit was decreed by the trial Judge, but dismissed in appeal by the learned District Judge on the ground that the mother was not entitled to the custody of the minor during that period and had refused to hand over the same to the father. It was held by Akhlaque Husain, J., as follows :- "Past-maintenance except, perhaps, for a very short period, cannot be recovered from the father by the mother who has maintained a child unless it has become due under either the decree of the Kazee or agreement by the father. In view of this state of the Hanfi law, the plaintiff-appellant is not at all entitled to a decree because she had not previously asked a Court to pass a decree for maintenance against the defendant-respondent and the latter himself had not agreed to pay any."
Reliance was placed by the learned Judge on the ,following passage from Hamilton's Hedaya, 2nd Edition, page 149:-- "Arrear not due in a decreed maintenance.--If the Kazee decrees a maintenance to children, or to parents or to relations within the prohibited degrees, and some time should elapse without their receiving any, their right to maintenance ceases, because it is due only so far as may suffice, according to their necessity (whence it is not so to those who are opulent), and they being able to suffer a considerable portion of time to pass without demanding or receiving it, it is evident that they have a sufficiency, and are under no necessity of seeking a maintenance from others, contrary to where the Kazee decrees a maintenance to a wife, and a space of time elapses without her receiving any, for her right to maintenance does not cease on account of her independence because it is not due, whether she be rich or poor."
Reference was also made to Urdu translation of "Durrul Mukhtar" by Maulvi Khurram Ali wherein it was laid down that in the event of a dispute between the mother and the father over the maintenance of the child, the Kazee should fix the amount of maintenance and order the father to pay to the mother and if the father is poor and the mother well-off, then the mother will be ordered to maintain the child and recover the amount from the father as a debt when he is able to pay it.
Lastly, in this connection, reference was also made to Bailee's Muslim Law, 3rd Impression, page 460 where it is stated that if the father is able, but refuses, to pay maintenance of a child decreed by the Judge or when after the decree he abandons the child without having the means of subsistance and the mother incurs debt under the direction of the Judge, she may have recourse to her husband for its recovery. In the same case, Akhlaque Hussain, J., discussed two other authorities, namely, Kachi Muhaidia Tharaganor v. Sainambu Ammal and others and Dinsab Kasimsab v. Mahamad Hussen Dinsab and another. In the former, Abdul Rahman, J. observed as follows :- "The rules of maintenance, so far as the children are concerned, have got really nothing to do with the father's right of custody. If the father has any right of custody of his children, he is entitled to enforce that right but the fact that he has not done so or that his children are residing elsewhere does not, in my opinion, deprive them of their right to claim or recovery of maintenance from their father."
This view was criticised in the latter authority Dinsab Kasimsab v. Mahamad Hussen Dinsab and another wherein their Lordships observed as follows :- "The maintenance, which the father, whether a Hindu or a Muhammadan, is under an absolute obligation to provide for his minor sons and unmarried daughters, does not necessarily mean a separate allowance in cash or kind, as appears to have been assumed by Abdul Rahman, J., in I L R 1941 Mad. 760."
While disagreeing with the Madras authority, their Lordships, preferred the following view expressed by Kania, J., in Bayabi v. Esmail Ahmed : "In my opinion the Muhammadan Law, like other systems of law, while putting an obligation on the father to maintain his children, gives with it a right to the father to keep the children in his house, unless according to the law governing the parties some other person is the lawful guardian of the person of the child."
8. Thus according to the view expressed in Dinsab Kasimsab v. Mahamad Hussen Dinsab and another relied upon by Akhlaque Hussain, J., in Mst. Ghulam Fatima v. Sh. Muhammad Bashir the right to custody could be a good defence to a claim for the separate maintenance of the child, provided the father has expressed his bona fide willingness to keep and maintain the child. More or less same view was expressed by their Lordships of the Supreme Court in Mst. Hamida Begum v.
Mushaf Hussain Shah. S. A. Rahman, J., who delivered the judgment, observed as follows :- "It may be, in our opinion, sufficient for the father to establish that he had all along been anxious and had made bona fide demands for the custody of his minor child whose legal guardianship under the personal law vested in him, for a plea to be advanced successfully on his behalf, in answer to a petition under section 488, Cr. P. C., that in the absence of compliance with his wishes, he was not guilty of negligence or refusal to maintain the child, by declining to make an allowance for its upkeep."
However, as stated earlier, the appellant's right to the custody of the minor during her period of hizanat to which her claim of past-maintenance is confined, cannot be disputed in the instant case, and as such it cannot be said that the child had been wrongfully withheld from his grandfather, the respondent. In Dinsab Kasimsab v. Mahamad Hussen Dinsab and another referred to above, it was held that the responsibility of maintaining his minor sons rests primarily on the father. He is bound to maintain his sons until they have attained the age of puberty, so long as he is in a position to do so and the children have no independent means of their own. It was observed :- "So long as the father is not the legal or appointed guardian of his sons and, therefore, not entitled to their custody, their residence with him is not a condition precedent to his obligation to maintain them."
9. 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 of2 3 4 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. The basis for this view seems to be the following verse No, 233 of Surah Al-Bakra {{URDU TEXT}} "The mothers shall give suck to their off-spring for two whole years, if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child. Nor father on account of his child. An heir shall be chargeable in the same way."
The generally accepted interpretation of the earlier part of the verse is that it merely prescribes two years as the maximum period of lactation after which the child has to be weaned. Even though the mother is under revisable divorce and spending the period of `Iddat, she is placed under no statutory obligation to suckle the infant. The relevant observation in Durrul Mukhtar is as follows :-- See {{URDU TEXT}} an Urdu translation of 3 by Maulvi Khurram Ali, Vol. II, page 276: {{URDU TEXT}} "The mother is not responsible for suckling the infant except when she is appointed (by agreement or order of the Qazi)." {{URDU TEXT}} "The father should place the services of a wet-nurse at the disposal of the mother as she has the right to the custody of the infant and the father is responsible for the maintenance." The minority view is that during this period of two years, the mother cannot claim any compensation from the father for suckling the infant and has been placed under an obligation to do so, gratis.
10. We are not, however, directly concerned with this question in the instant case which is confined to the determination of the responsibility of the mother and the grandfather for maintaining the minor on which there appears to be considerable difference of opinion. Three different views have been put forth by the jurists of Islam : (1) One view is that the responsibility of maintenance is entirely that of the mother if both the mother and the grandfather have means. It has been so held in Durrul Mukhtar --Babul Nafqa (Fasl I'7). The principle has been laid down in the following words : {{URDU TEXT}} i,e, the relevant determining factors would be participation of blood and not {{URDU TEXT}} inheritance. The same view has been expressed in {{URDU TEXT}} by an Urdu translation of by Syed Amir Ali, 1932 Edition, Volume II, Chapter XVII page 607: "If the father is needy and the mother and grandfather are possessed of means, the mother and not the grandfather will be responsible for maintenance of the child, of course, with recourse to the father."
(2) The other view is that the responsibility will be propor-tionately shared by the mother and the grandfather in accordance with inheritance. Maulvi Khurram All in his Urdu translation of Durrul Mukhtar, Part II, page 278 has traced this view in the following words : {{URDU TEXT}} According to{{URDU TEXT}} if the mother and the grandfather are possessed of means they will share the responsibility proportionately. Same view has been expressed in {{URDU TEXT}} as referred to in {{URDU TEXT}}in the following words: {{URDU TEXT}} : (3) The third view is that the responsibility is solely that of the grandfather. It is traceable to several authorities. Maulvi Muhammad Yousaf in his Mohammadan Law, Volume II, 1895, has reproduced the following references from Fatawa Qazikhan : {{URDU TEXT}} "If a man dies leaving a minor child and father, the latter shall be responsible for the maintenance of the child." {{URDU TEXT}} "Hasan (peace be upon him) traced it to Abu Hanifa (peace be upon him). The maintenance of the infant will be on the grandfather as if he stepped into the shoes of the father. And if the mother is necessitous the maintenance will be the liability of the grandfather and the mother would be deemed to be non-existent." {{URDU TEXT}} "if the child has a mother, a brother and grandfather all possessed of means, the responsibility is that of the grandfather. Abu Hanifa relied on the following observation of Abu Bakr. The maintenance of the child is on the grandfather."
A somewhat similar view has been expressed by Bailee in his Digest of Mohammadan Law, 4th Impression, 1965 in the following words : `When the father is poor and the child's paternal grandfather is rich, and the child's own property is available, the grandfather may be directed to maintain him, and the amount will be a debt due to him from the father, for which the grandfather may have recourse against him; after which the father may reimburse himself by having recourse against the child's property if there is any. When the father is infirm and the child has no property of his own, the paternal grandfather may be ordered to maintain him without right of recourse against any one ; and, in like manner, if the child's mother be rich, or the grandmother rich, while its father is poor, she may be ordered to maintain the child, and the maintenance will be a debt against the father if he be not infirm, but, if he be so, he is not liable."
A. F. M. Abdur Rahman in his Institutes of Mussalman Law, 1907 Edition, page 223 basing his opinion on `Radd-ul-Muhtar and Zaidu-nil-Ambani' observed as follows :- "Article 401.--Where a father is dead or held to be so, and leaves a minor child without means, or an adult child who is infirm, and there are in either case ascendants and collateral relations, who cannot all inherit from the deceased, the nearest ascendant is alone liable for the maintenance, whether he or a collateral relation is the sole heir. Thus, if a child without means, has a paternal grandfather and a full brother or a maternal grandfather and an uncle, in either case it is the grandfather who will bear the expenses of maintenance.
If the ascendants and collateral relations can all inherit from the deceased, they must bear the cost of the child's maintenance between them in proportion to their respective shares in the inheritance. Thus, if a child has a mother and a full brother, or a full nephew or a full uncle, the mother will pay one-third and the male paternal relation two-thirds of the maintenance."
11. We are in respectful agreement with the last view for the following reasons. In our humble opinion the relevant Quranic injunction which forms the basis of reasoning and analogy is contained in verse No, 233, Surah Bakra reproduced Earlier {{URDU TEXT}}el.91911 J 9. The responsibility of maintenance is exclusively that of the father who has been placed under an obligation to feed and clothe the mother of the infant even though she may no longer be his wife and the same responsibility has been laid on his heirs. Even otherwise it does not stand to reason that what on the one hand the mother is under no statutory obligation to suckle her own baby, she may be forced to share the responsibility of his maintenance with the grandfather notwithstanding her poverty. Again, the precedent of the first Caliph, Abu Bakr Siddioue, offers a safe guide for the determination of the issue which was followed by Imam Abu Hanifa as was stated in Fatwa Qazikhan and referred to in Fateh-ul-Qadir (Sharah Hidayat) by Burhan-ud-Din- al-Marghniani, page 380 in the following words:- {{URDU TEXT}} "If he (the child) has grandfather and mother possessed of means, the liability to maintain will be as reported by Hassan on the authority of Abu Hanifa solely on the grandfather who will take the place of the father." This also is the view of Imam Shafi.
12. Although there has been some conflict of opinion as to the entitlement of the wife to claim past maintenance yet in Sardar Muhammad v. Mst. Nasima Bibi and others, delivered by one of us (Muhammad Afzal Cheema, J.) later followed in Rashid Ahmad Khan v. Mst. Nasim Ara and others, the view taken was that the wife was entitled to such maintenance in proper cases. There appears to be, however, no difference of opinion in regard to the entitlement of the child to past maintenance. If an authority is needed, reference may be made to Moosa Seethi v. Mariyakutty.
The relevant observation is as follows :-- "With regard to the past maintenance decreed in respect of the child the appeal is clearly groundless. The father of the child the 1st defendant was bound to pay the mother the expenses of the maintenance she incurred while it was staying with her. It has not been shown that the child was being kept by the mother unlawfully."
13. The position as it finally emerges from the above analysis is that if the father is entitled to the custody of the minor and is anxious to maintain and yet is not allowed, to do so, except under a decree of the Court, he can legitimately refuse to make payment of past-maintenance and cannot be burdened with it. In the instant case, the grandfather can be substituted for the father. The child was maintained by the mother who did not contract a second marriage after the death of her husband. She maintained the child during the period of hizanat when she had obviously the right to his custody. Under the circumstances, therefore, the respondent cannot escape the liability of payment of past-maintenance. It is clear to us that the facts of the case before Akhlaque Husain, J., were quite distinguishable from those of the instant case and even otherwise his Lordship did not lay down the law in absolute and unqualified terms, that in no circumstances was a mother entitled to the past-maintenance of her minor child.
As a result of the above discussion, we allow the appeal, reverse the finding of the Courts below on issue No, 6 and decree the appellant's suit for a sum of Rs, 1,980 worked out at the rate of Rs, 55 per mensem for a period of three years which is the maximum amount she can claim under the law of limitation. In view of the conflict of judicial opinion, we leave the parties to bear their own costs. PLD 1958 Lah. 596 AIR 1941 Mad. 582 43 Bom. L R 823 PLD 1958 SC (Pak.) 284 PLD 1966 Lah. 703 PLD 1968 Lah. 93