The relevant facts which gave rise to this Constitutional petition are that the petitioner, Darayus (Happy) Minwalla son of Cyrus Minwalla, was married to Shereen Masood, in London on 8-5-1979 according to Muslim Rites. One child, namely Taimoor respondent No,1 was born from the wedlock on 25-12-1979. Thereafter, differences developed 'between the parties and the marriage was dissolved. All the disputes between the parties were settled in terms of the order of His Lordship Mr. Justice Irshad Hassan Khan, of the Lahore High Court, Lahore (as he then was) vide judgment dated 28-2-1984 passed in Writ Petition No,4661 of 1982. Respondent No,1 was awarded maintenance in the sum of Rs,2,500 per month till he was to reach the age of 10 years and it was also ordered that the parties would not re-open directly or indirectly litigation in any other suits pending between them.
2. In 1994 respondent No,1, through his mother Shereen Masood, filed a suit for enhanced maintenance against the petitioner, which was decreed by the learned Judge Family Court, Lahore on 2-10-1996. The appeal of the petitioner was dismissed on 12-3-1996. His Writ Petition No, 11067 of 1997 was dismissed and leave to appeal before the Supreme Court of Pakistan in C.P.L.S.A. No,69 L of 1998 was also dismissed on 3-3-1999. The petitioner was directed to pay enhanced maintenance to respondent No,1 as under:-
(i) Rs,10.850 per month w,e,f, January, 1990 to December 1992:
(ii) Rs,16,335 per month w.e.f, January 1993 to 1994: and
(iii) Rs,16,335 per month from January, 1994 and also in future.
3. Respondent No,1 had filed an execution petition before respondent No,2, learned Judge Family Court Lahore, on 22-10-1996. However, proceedings remained in abeyance during the pendency of the appeal, Writ Pelition and C'.P.S.L.A. filed by the petitioner. After the C.P.S.L.A. was dismissed, respondent No,1 filed an application, for continuation of the execution proceedings on 10-3-1999.
The petitioner filed an Objection Petition, which was dismissed on 22-7-1999 and bailable warrants in the amount of Rs,15,00,000 for the arrest of the petitioner/judgment-debtor were issued by respondent No,2. Appeal filed by the petitioner before respondent No,3, learned Additional District Judge on 18-8-1999 was also dismissed on 8-11-1999. The petitioner filed an application under section 151. CPC, praying that the warrants of arrest should not be executed, and seeking permission for deposit of Rs,98,101 being the balance amount of maintenance payable to respondent No,1 till the age of 15 years, at which age respondent No,1 had obtained puberty, according to the petitioner, and had become disentitled to any further maintenance. This application was dismissed by respondent No,2 and fresh bailable warrants of arrest of the petitioner were issued on 24-3-2000.
4. On 6-4-2000, the petitioner filed the present writ petition, praying therein, that the period of maintenance of respondent No,1 be determined according to Muslim Law and the petitioner would pay the balance amount due as determined by this Court within two months. In the meantime, it was prayed that the warrants of arrest issued against the petitioner by the executing Court be stayed.
5. Vide order dated 21-4-2000 my learned sister Mrs. Fakhar-un-Nisa Khokhar, J. directed the petitioner to deposit Rs,3,02,640 on or before 21-5-2000. This amount was deposited by the petitioner and the execution proceedings were stayed. The petitioner was admitted to regular hearing by my learned brother Mian Saqib Nisar. J. on 13-7-2000 to consider the question as to whether Taimoor, respondent No,1, had attained majority at the age of 15 years or 18 years. The petitioner was directed to furnish bank guarantee amounting to Rs,5,88,060 within a period of three months. The petitioner filed C.P.L.A. in the Supreme Court of Pakistan against the order of deposit of bank guarantee on 8-9-2000. The Honourable Supreme Court of Pakistan was pleased to direct that the petitioner should move a fresh application for relaxation of the terms of the impugned order dated 13-7-2000. Accordingly, the petitioner filed an application for providing some security other than the bank guarantee to secure the payment of the amount of Rs,5,88.060.
6. Learned counsel for the respondent No,1, on instructions, agreed that a promissory note executed by the petitioner would be deemed as adequate security by him. Accordingly, a promissory note executed by the petitioner in the amount of Rs,5,88,060 has been deposited with the Deputy Registrar (Judicial) of this Court on 30-5-2001.
7. Learned counsel for the parties have both sought determination regarding the following questions:-
(i) Whether the age of majority in respect of respondent No,1, Taimoor, is to be reckoned in accordance with the Majority Act, 1875, or under the provisions of Muslim Personal Law while deciding the matter of maintenance?
(ii) Whether the Executing Court has the jurisdiction to decide the question of majority after the matter of maintenance had been decided upto the Supreme Court of Pakistan in the suit for maintenance and this question has been agitated for the first time before the Executing Court?
8. Learned counsel for the petitioner has argued that any objection regarding the decree could be raised before the Executing Court during execution proceedings, and that the question of age of majority also relates to the executability of the decree, since the decree itself is vague, no terminus quo has been mentioned therein regarding the period of maintenance. and that the Honourable Supreme Court of-Pakistan in its judgment, had merely observed that respondent No,1 is entitled to the payment of maintenance as decreed by the learned Judge Family Court, till the age of majority, and since the age of majority had not been determined in the original proceedings, the same was open to determination by the executing Court, who is empowered to decide all matters pertaining to the executability of the decree.
9. Learned Counsel further argued that the execution petition was not competently filed since respondent No,1 had attained majority under Muslim Law on 25-12-1994; that the properties sought to be attached therein were not properly described, they were situated in Karachi. therefore, application could not be filed in Lahore; also assailed the manner in which the executing Court had directed for execution of the decree, by 'issuing bailable warrants of arrest of the petitioner, although the prayer of the decree-holder in the execution petition was that warrants of attachment of the property of the petitioner be issued. Learned counsel has relied on the following cases in support of his arguments:-
(1) (PLD 1961 SC 192) Islamic Republic of Pakistan v. Muhammad Saeed.
(2) PLD 1965 Kar 293) Messrs Haji Ahmed & Co. v. Muhammad Siddique and others.
(3) (.1987 CLC 1277) Parwaiz Ahmed v. District Judge. West Karachi and 2
(4) (1986 CLC 2381) Nasir Khan v. Tahira Rashida.
(5) (PLD 1970 Pesh 52) Lal Muhammad and another v. Mst. Niaz Parwara.
10. Regarding the age till which respondent No,1 is entitled to maintenance, learned Counsel for the petitioner has relied on section 370 of Mulla's Principles of Mohammedan Law to argue that the father is liable to maintain his children till they reach the age of puberty, and this right of the minor cannot be enlarged to extend to the age of Majority under the Majority Act, 1875; has also referred to Outlines of Mohammedan Law by Fyzee (pg. 78), to argue that a Muslim 'male attains majority at puberty which is presumed to be 15 years, while in Hedaya one finds that puberty is possible even at the age of 12 years: he has relied on the following judgments in support of his arguments that a male Muslims attains puberty at 15 years:
(a) PLD 1991 SC 172 (at 178) Abdul Jabbar v. The State.
(b) PLD 1997 Kar. 386 (at 391) Nooruddin v. Kaimuddin.
(c) 1996 CLC 1 (at 29) Captain S.M. Aslam v. Mst. Rubi Akhtar,
11. In a nutshell, the learned counsel for the petitioner vehemently argued that the petitioner was liable to maintain Taimoor till he reached the age of 15 years, which was on 25-12-1994 and petitioner had already deposited a bank guarantee for the entire decretal amount as directed by the Honourable Supreme Court of Pakistan, which was encashed by the respondent, therefore the petitioner had discharged his entire liability. He has stated however, that money is no consideration for the petitioner, he merely wants the question of his liability to be determined authoritatively by the Court. He is neither a callous nor a negligent father, and he wishes his son to have the best education and upbringing, but the mother of the minor has created acrimony between father and son by pursuing these proceedings to satisfy her own ego.
12.Learned counsel for respondent No,1, has raised the preliminary objection that this writ petition is not maintainable, since the petitioner had already challenged his liability to pay maintenance to respondent Taimoor, and the matter had been settled by the Honourable Supreme Court of Pakistan as to what was the liability of petitioner in respect of maintenance of Taimoor; that the petitioner had not raised the question of majority before the Court at any stage when the question of maintenance was being addressed, and he could not raise this issue during execution proceedings, and the Executing Court had no jurisdiction to go behind the decree, since all questions regarding maintenance had already been decided up to the Supreme Court and could not be reopened in objection petition before the executing Court. He has placed reliance on the following cases:-
(a) 1994 CLC 800 (at 808) Ali Shah v. Allah Ditta.
(b) 1994 SCMR22 Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others.
(c) PLD 1978 Lahore 1078 Syed Anwar Ali Shah v. Syed Niaz Ali Shah.
(d; PLD 1984 Lahore 179 (at 182) Muhammad Saleem alias Seema v. Sardar Khan.
13.It is argued that the petitioner has approached this Court in its extraordinary Constitutional jurisdiction seeking equitable and discretionary relief, but his 'conduct does not entitle him to any such relief: his sons from his other marriage are all being educated' abroad, one is at Dartmouth College, while the other :s at the University of Texas, while for maintenance of respondent No,1, he is acting in a discriminatory manner and is not even willing to see him through High School.
Therefore, he is not entitled to any equitable relief.
14.On merits it is argued that question of majority is to be determined according to the cultural milieu and surrounding circumstances of the case. Learned counsel has relied on judgment cited as Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75. to argue that a child must be maintained until it is in a position to earn its own livelihood in an honest and decent manner in keeping with the family status.
Learned counsel has also relied on the following verses of the .Holy Qur'an: Sura Al-Araf Chapter 7 Verse 199: Adopt forgiveness. enjoin good practice, URF (CUSTOM) and turn aside from the ignorant.
1. Sura Al. Baqra Chapter 2 Verse 236: (Principle) The wealthy according to his means and the poor according to his circumstances - a provision according to custom URF. It is a duty on the doers of good.
He has also argued that Istehsan and Masaleh Mursala as sources of Islamic law are involved, particularly when the Qur'an, Sunnah and Ijma are conspicuously silent on the question of maintenance, the purposes of Din would be kept in view. Preservation and making the children good. educated persons and equipping them with latest knowledge according to family practice is the purpose of Religion.
15.I have heard the learned counsel for the parties and have perused the record with their able assistance, and have also examined the judgments cited by both the learned counsel at the bar.
The first question to be addressed is as to whether the execution petition had been properly filed before the proper Court and as to whether the Court has jurisdiction to pass orders on the same.
16.The original decree for maintenance on the application of respondent No,1 Taimur. had been passed on 2-10-.1996 by the learned Judge Family Court. Lahore, therefore, the execution petition was also to is be filed before the same Court under section 13 of the West Pakistan Family Courts Act, 1964. therefore, it was the proper Court to file the execution petition and it had jurisdiction to enforce the decree. As regards the competency of the person filing, originally the suit for maintenance was filed on 11-7-1994 on behalf of Taimur by Shereen Masood, mother and next friend of Taimur, while he was still a minor, which was decreed on 2-10-1996. The execution petition was also filed by her on 22-10-1996. The proceedings remained stayed till the petitioner's appeal was dismissed by the Supreme. Court on 3-3-1999. During this period respondent No,1 attained majority on 25-12-1997. On 9-3-1999 an application was filed under section 151, CPC for continuation of the execution proceedings. Respondent No,1 executed a power 01 attorney in favour of his mother Shereen Masood during the pendency of these proceedings and- thus the irregularity, if any, in filing application for revival of the execution proceedings was cured.
It has been held by the august Supreme Court in numerous cases, that technicalities should not be allowed to stand in the way of substantial justice. Reference can be made with advantage to the following cases: (PLD 1985 SC 345) Mst. Ghulam Bibi and others v. Sarsa Khan and others.
(1992 SCMR 1974) Allah Ditta v. Barka Ali and others.
(PLD 1993 SC 332) Mir Mazar v. Azim.
(1993 SCMR 1304) Master Musa Khan and others v. Abdul Haq and another.
(PLD 1993 Lahore 791) Sheikh Rashid Ahmed v. Election Tribunal.
17. The petitioner had also raised the objection that the executing Court could not pass an order for the arrest of the petitioner when the decree-holder had filed an application for attachment of his property, which was also not properly described in the application for attachment. According to section 13(3) of the Family Courts Act:- B.Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court. the same shall, if the Court so directs. be recovered as arrears of land revenue and on recovery shall be paid to the decree-holder.
Under section 80 of the Land Revenue Act, 1967, arrears of land revenue may be recovered inter alia.
(b) by arrest and detention of his person under section 82.
It has been held in case cited as PLD 1993 Karachi 159 Qurban Ali Khan v. IVith Civil and Family Judge, that: Words "if the Court so directs" vest discretion in the Family Court to adopt the extremely coercive method for recovery of the decretal amount as arrears of land revenue.
Therefore, the Executing Court could use any coercive method to ensure execution of the decree. In any case. only bailable warrants of arrest of the petitioner were issued in order to ensure the payment of decretal amount. The i petitioner could make payment of the decretal amount or deposit hank guarantee with the Executing Court in order to avoid arrest. which he did, therefore, it is held that the Executing Court had the jurisdiction to entertain the execution petition, to pass such orders as it considered appropriate for ensuring the recovery of the decretal amount and the impugned order dated 22-7-1999 was within its jurisdiction.
18. The next question to be ,addressed is as to whether the contention that the age of majority of respondent Taimur should be reckoned according to the Majority Act, 1875, or according to the provisions of Muslim Law, could be agitated before the Executing Court by the petitioner.
The learned counsel for respondent No,1 has rightly pointed out that the petitioner had opposed the suit for maintenance filed by respondent No,1 upto the apex Court but he had never agitated this question at any stage. It is pertinent to note that the suit for maintenance was filed by respondent No,1 on 11-7-1994 and was decreed on 2-10-1996. According to the contention of the petitioner, Taimur attained majority on 25-12-1994 under Muslim Law, and was not entitled to any maintenance thereafter. The suit for maintenance was still pending before respondent No,2 on 25- 12-1994 and this contention could have been raised by the petitioner in his written statement and/or during arguments; during the appeal, the writ petition or the C.P.L.A. filed by the petitioner.
However, he did not raise this contention at any strage during the proceedings regarding maintenance. Even in ground (a) of his objection petition filed on 24-5-1999, he specifically stated that Taimur had attained age of majority on 25-12-1997. Therefore, the petitioner is estopped by his own statement and conduct to raise this contention at any subsequent stage, particularly in execution proceedings.
The cases cited by the learned counsel for the petitioner are of no help to him, since they all pertain to the executability of the decree and not to any questions which pertain to the substance of the decree. The question as to whether age of majority of Taimur is to be reckoned under the Muslim Law or under the Majority Act, should have been properly raised at some stage in the previous round of litigation in the suit for maintenance which the petitioner had vehemently contested up to the apex Court but this question was raised by him for the first time on 18-8-1999 before respondent No,3. It is patently an afterthought and has been agitated merely to further delay the recovery of the decretal amount and payment of the same to the decree-holder. It is a device to deprive the decree-holder of the fruits of the decree.
It has been held in Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others (ibid), that:-- Questions which could have been raised in proceedings in suit but were not raised could not be urged by the judgment-debtorbefore the Executing Court, which was bound to execute the decree as it was. The judgment debtor could not contend before the Executing Court that his liability was not correctly assessed or determined. In execution proceedings he could not take up plea which had not been raised before Trial Court during course of hearing of suit which was ultimately decreed and decree became final -once a decree was passed it had to be executed in its terms and it was not open to the Executing Court to go behind it to determine the liability of parties.
The ratio of the above-cited case is applicable to the circumstances of the present case. Therefore, it is held that the question of age of majority of Taimur could not be agitated by the petitioner in execution proceedings.
19.Even otherwise, the age up to which a child is entitled to maintenance, has not been specifically mentioned in the Holy Quran or the Sunnah of the Prophet (peace be upon him).
Muslim jurists have given different views on the subject, some of which have been cited by the learned counsel for the petitioner.
20.The rules of the Shariah can be divided into two main categories: (a) Those relating to religious observances - Ibadat (b) Those pertaining to worldly transactions Muamalat. The purposes of the rules governing transactions can be discerned by reason. They are based on bringing benefits to the people and protecting them against evil. Benefits are permitted while evils are forbidden. Since the interests of the people are the basis of all laws, it is both necessary and reasonable that Shariah rules should undergo changes to suit the changing times and that these rules be effected 'by the social organisation and environment.
21. In Islam, the majority of jurists have accepted the principle of change in legal rules. Ahkam Ghayr Mansusa (not revealed laws), can be easily changed. However, if the rule is based upon a text of the Qur'an or Sunnah, and is related to matters of religious observance, it is firmly fixed and unchangeable. On the other hand if a text relates to worldly transactions, the rule would be to consider the meaning and understand the ,causes upon which such text is based. Many Jurists, including the Caliph Umar and Imam Abu Yousuf have endorsed the possibility of change in the interpretation of the texts, because of a change in their causes or in the customs upon which they were based, or in answer to necessity and public interest. (Views of Shatibi and Ibne Hazm, as cited by Sobhi Mahmassani, in Falsafat-al-Tashri fial-Islam. Leiden E.J. Brill, 1961. pp. 109-117).
22.The Holy Prophet (peace be upon him) said: "If I order you to do something concerning your religion, heed my order, but if I order you concerning an opinion of mine, why I am merely a human being, you are better informed on matters relating to your daily life."
He also said:- "Make things easier not more difficult; bring 'good tidings to the people and do not drive them away."
(Muslim as cited by Mahmassani pp.. 118 (ibid)
The Quran Says: "Allah desireth for You ease, He desire the not hardship for you".(Surah II: 185) The spirit of the Shariah is thus founded upon public interest, public good and the facilitation of life in general and the State is obliged to enact laws, which safeguard the interests of all the people.
23. Syed Ameer Ali in his book titled Mahommedan Law, observes that the maintenance of children is obligatory on the father. The obligation of maintaining male children lasts until they arrive at puberty. However, he add "If the male children are actually able to work, but the employment found for them is unsuitable or improper for their rank in life they should be placed on the same footing _ as children labouring under some infirmity. Ability to work must, in such cases, be considered with reference to the social position of the - children as well as the parents; so that a father occupying a respectable position, in which the children have been brought up delicately, must not hire them out for work which is degrading in its nature.(pp 386).
24. The judgment cited as PLD 1970 SC 75 Alaf Din v. Mst. Parveen Akhtar is the authoritative view of the Supreme Court of Pakistan on the question as to the age that a son is entitled to maintenance from his father. The relevant portions are reproduced: Whether child in position to maintain itself - Depends on status and circumstances of each family - Word "maintenance" - Includes education but not education at higher level ad infinitum.
The word "child" has not been defined in the code. Though the word "child" is its widest sense may mean any son or daughter or any progeny yet, it cannot extend to embrace within its fold a person of 40 or 50 just because his parents are alive.
"Unable to maintain itself". Normally a child, after attaining majority, would be physically in a position to maintain itself, for, it would then be capable of earning some kind of livelihood. But this again is a question, which will depend upon the status and circumstances of each individual funny.
Thus, although the section does not make any reference to the age of majority, it is a consideration which must inevitably be taken into account by the Court when deciding the question as to whether the child is or is not able to maintain itself. He/she has already found suitable gainful employment and is in a position to maintain himself or herself. Again in interpreting the word "maintenance" some reasonable standard must he adopted. Whilst it is not confined merely to food. clothing and lodging, it cannot, by any stretch of imagination. be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus, it may not be sufficient to say that the child of a tradesman can maintain it by working as Cooly or by thieving. What is required is that the child must be maintained until it is in a position to earn its own livelihood in an honest and decent manner in keeping with family status.
The learned counsel for the Petitioner has objected that this judgment is based on the provisions of section 488, Cr.P.C. therefore, it is not applicable to the present case. This objection is not sustainable, since the age upto, which a male child is to be maintained, is a question, which does not arise out of the interpretation of section 488, Cr.P.C. It is an independent question of fact and law, which has been addressed, in the above-cited judgment of the Supreme Court.
26. It is also to be noted that the petitioner has approached this Court in its equitable and discretionary jurisdiction. It is an oft quoted maxim of equity that, " He who seeks equity must do equity". The conduct of the petitioner has been inequitable and discriminatory as between respondent No,1 and his other male children. The learned counsel for petitioner emphatically stated that money is no consideration for the petitioner yet he has deliberately avoided paying maintenance to respondent No,1, who is admittedly his son and is not in a position to earn his own livelihood, and has raised frivolous objections in his objection petition in order to delay discharging his undisputed liability as long as possible. Therefore, he is not entitled to any relief in exercise of equitable jurisdiction.
27.In view of the above discussion, this petition has 'patently been filed with mala fide intentions and is without merit.It is accordingly dismissed with costs throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.