BAHRIA UNIVERSITY ISLAMABAD

DEPARTMENT OF LAW

Subject: (ISLAMIC PERSONAL LAW- MID TERM ASSIGNMENT)

Topic: A Case Study on Enhancement of Maintenance Allowance

(NAZIA BIBI VERSUS ADDITIONAL DISTRICT JUDGE, FEROZEWALA)

Submitted To: Ms. Zartasha

Submitted By: Fareeha Jamil (01-177181-010)

 JUDGMENT OF HIGH COURT

WRIT PETITION No.154537 of 2018

RELEVANT ORDINANCES AND ACTS

▪ The West Pakistan Family Courts Act, 1964 section 17(A), sub-section 04
▪ The Muhammadan Law section 352
▪ The Muhammadan Law section 369
▪ The Muhammadan Law section 370

-In the present petitions followings are the petitioners and respondents
PETITIONERS
Nazia Bibi
RESPONDENTS
Additional District Judge

-Following are the legal representative for the parties of the case
For Petitioners- Chaudhary Aurangzeb Gujjar in Writ Petition No.154537 of 2018 and
Mr. Imran Muhammad Sarwar in Writ Petition 194641 of2018.
For Respondent 2 to 5- Chaudhary Aurangzeb Gujjar in Writ Petition No.194641 of
2018.
For Respondent 3- Mr. Imran Muhammad Sarwar in Writ Petition No.154537 of 2018.
Date of hearing- 11-9-2018.

The above mentioned people questioned the Judgment of Additional District Judge (Family
Court) regarding the decision on the Enhancement of the Maintenance allowance in the district,
Ferozewala.

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 INTRODUCTION

This Case study is about the ‘Enhancement of maintenance allowance’. Therefore, we will
discuss about the word ‘Maintenance’ in this regard, as the whole Judgment revolves around the
said thing.

It is stated in section 356 of Mullah’s Muhammadan Law: “Maintenance means and includes
food, raiment and lodging”. This definition is inconclusive and it is not only confined to these
things. Under Islamic Law there are certain rights of maintenance which can be exercised by
parents in regards to the maintenance of their children.

Quranic Verse:

ْ ‫ى ا ْل َم ْولُو َِّد لَهَُّ ِر ْزقُ ُهنَّ َو ِك‬

َّ ‫س َوت ُ ُه‬
‫ن‬ َّ َ‫عل‬
َ ‫َو‬

“And on the child "s father (the husband) is their food and clothing”

(2:233).

BRIEF FACTS

In the present case the Petitioner No.1 (Nazia Bibi) filed a suit for recovery and
enhancement of maintenance allowance for herself and for three minors. It was decided on
21.5.2014 and Rs.7000/- per month as maintenance along with 10% yearly increase per month
was pronounced. Therefore, on 14.6.2016 Petitioner No.1 filed an application for enhancement
of maintenance of minors and application was not approved in a pronounced judgment which
was passed on 17.3.2017.

Therefore, the reason for this disapproval was that: The Petitioner (decree holder) cannot
claim that the maintenance allowance has not been fixed and determined properly. If it were

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permissible, there will be no end or finality to the judgment and decree dated 21.5.2014 which
had become final.

After that The Petitioner No.1 filed a second application for the enhancement of
maintenance allowance from Rs.7000/- to Rs.300, 000/- per child per month, which was again
disapproved on 26.7.2017.

Therefore, the reason for this rejection was that: The Petitioners had not criticized the
Judgment which was pronounced by the learned trial court. Moreover, The Petitioners had not
questioned their earlier petition which was rejected by learned transferor court and after
obtaining an effective remedy, they filed the petition which is not maintainable.

On 25.9.2017 the Petitioner No.1 filed an appeal before Respondent No.1 against order
dated 26.7.2017. It was approved to some extent and maintenance of the minors from Rs.7000/-
to Rs.12, 000/- per head per month plus 10% yearly increase was pronounced on 11.1.2018. The
pronounced Judgment was unfavorable for Petitioners. Therefore, petitioners are discontented by
the amount fixed for the enhancement of maintenance (Rs.12000/- per month per minor). Hence
this petition,

ISSUES THEREIN

▪ Whether maintenance of minors and wife depends upon the financial status of father.
▪ Would maintenance amount be increased once fixed by court or applications for
enhancement can be considered.
▪ Amount of maintenance required for minors Would / Would Not be increased as per the
growing needs of present period
▪ There Should / Should Not be legitimate standard to examine the quantum of
maintenance?
▪ Are documentary evidences required in procedure of examining and in fixation of
enhancement of maintenance for minors?

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 ARGUMENTS BY THE PETITIONER

▪ The Learned counsel for the Petitioners argued that the Respondent No.3 has the financial
capacity to pay more than 12,000 for maintenance to the minor a month as is visible from
his property document and his taxes- (documentary evidences) that are attached with the
application and that the court had not given due consideration to these documents while
fixing the maintenance.
▪ The petitioner No. 1 contended about a barred appeal that she received the judgment
notice late and that the welfare of the minors is more important. Moreover, she thought
that the lower courts are closed during the month of August so she could not appeal in
response to show her grievance regarding the maintenance.
▪ The Intention of the petitioner for repeatedly submitting enhancement applications was
not to harass the Respondent. As Respondent No. 3 (father) is legally bound to maintain
the minor in terms of requirements of minors and costs of living and with the growth of
the child the child’s needs also grows. So, to enhance the amount of maintenance, her
claim was maintainable.
▪ The Petitioner professed that the amount of maintenance is to be enhanced at the rate of
Rs.300,000/- per month per child as the Respondent No. 3 has the financial capacity to
manage this required amount of maintenance for minors
▪ The Petitioner declared that the maintenance allowance was enhanced by the Appellant
Court from Rs.7000/- to Rs.12, 000/- per month per child, with 10% annual increase and
while fixing the amount of maintenance for minors the documentary evidences were not
examined properly to reach proper conclusion by the Court.

ARGUMENTS BY THE RESPONDENT

▪ The Learned counsel for the Respondent argued that the Respondent no.3 is discontented
by the impugned judgment on account of fact that the same has been passed in time
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 barred appeal, which as per the contention of learned counsel. Respondent no.1 that is
additional district judge, Ferozewala could not have condoned the delay.
▪ The conduct of the petitioners by repeatedly filing enhancement applications shows that
she did not have a genuine requirement of enhancement but only wants to harass
respondent no.3.
▪ The amount fixed by the court at Rs.12, 000/- per month per children, this amount is
arbitrary, without due consideration of the relevant facts or record; that the court did not
take into consideration the monthly income of respondent no.3 nor did it take into
consideration the fact that respondent no.3 is married and has six children, hence he is not
able to pay Rs.12, 000/- per month per child.
▪ Respondent no.3 was unable to pay the amount sought by the petitioners as the demand is
not justifiable and said that it’s more than the minor needs for food, raiment and lodging
that are mentioned in Muhammadan Law by D.F Mullah.
▪ The judge family court considered the application for enhancement of maintenance and
dismissed the same on the ground that the suit was decreed on 21.5.2014 and it was never
challenged by the petitioners before any forum, hence the minors are not entitled to
enhancement of maintenance.

JUDGMENT

After hearing the learned counsel for both parties, the Lahore High Court stated that in
order to answer the legal issues which are mentioned above, we have to understand the concept
of Maintenance in Islam, Maintenance with respect to Muslim children and Quantum of
maintenance required for the maintenance of children (minors).

According to Islamic law, Maintenance of Muslim children must be regulated by the

principles and injunctions of Islam.

Maintenance is defined in Section 369 of Muhammadan Law

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 It says to provide food, raiment and lodging. The meaning of this definition is
inconclusive. The objective to provide maintenance is to fulfill the needs. Therefore, to
accomplish this objective the meaning of this definition can be extended by considering the
status of the family, the norms of the society and other needs of the present period (social,
physical, mental growth, upbringing and well-being of the minor, educational requirements etc.).
It is to be extended according to the capacity and amount that the father is able to provide.

Under Section 370- The Liability of the father to pay his maintenance to his children

The father has to provide maintenance to his children in the period of childhood and
minority. If they have reached the age of puberty then the father is not responsible to provide
maintenance. However, in case of any disability (infirmity and disease) in their adulthood period
he has to provide maintenance. He has to provide maintenance to his daughters before their
marriage.

Under section 352

In a period of Infancy, the mother has to keep and look after the child. During that period
it does not take away a responsibility of father to fulfill his legal obligations. However, if a child
can maintain their own self, then it is not the responsibility of the father to maintain him/her.

If the earnings and income of father is not enough to provide proper maintenance to his
children then, in these conditions, if it is comfortable for mother she can provide maintenance to
her children along with their father. If both of them cannot provide, then in these conditions, the
grand father is obliged to provide maintenance, if he is comfortable to provide.

-There should be a legitimate degree and standard to attain the meaning of ‘Maintenance’

Its meaning is not only restricted to food clothing and lodging. It can be extended as it
contains educational requirements (of higher level of child) which could be of without limit. It is
important to discover the extent of the education which is to be obtained by the child in regards
to the status and other conditions of the family. It is compulsory and should be considered that

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the maintenance should be provided to child until he/she can maintain and secure necessities of
their life in a right and decent way while considering its status of family.

-To determine the ‘Quantum of Maintenance of Child’ there should be a reasonable standard

The Objective for determination of the quantum of maintenance is to make certain that,
the father has to maintain his children (minors) in all conditions in a respectful way and the
mother has not to keep and look after her minors alone.

To consider the quantum of maintenance the courts should consider fundamental beings
(minors), education, status, general expenses- reasonable conditions of obtaining education and
ability to take care of minors in a respectful manner.

For the determination of quantum of maintenance, the Court should examine that is
whether the father capable of maintaining the minors. The quantum has to be determined on the
father’s earning, financial and social status. However it is stated that if the father is jobless even
in that condition he has to maintain his minors, as he is obligated under the law.

In the present case the Appellate Court has not discussed the earning capacity of Respondent
No.3 nor the requirements of the minors, yet enhanced the maintenance from Rs.7000/- to
Rs.12000/- per month.

To determine the quantum of maintenance the Court should examine all the factors that
determines the actual need of the minors and the expenses which were obtained and those
expenses which the minors has to obtained in a coming period. The Court has to consider living
conditions and the special needs of minors. Moreover, the Court must examine that is whether
purpose and amount of maintenance that is already fixed is fulfilling the expenses of minors.

The Court must examine the earning capacity of the father through proper documentary
evidence. It requires the father to provide documents of his salary slips, bank statements and
property documents .So, that his earning capacity can be examined. It is important that the assets
owned by the father must be examined by the court as these are contributing in his financial
status. The Court must consider is whether the father is paying any bank loan or debt, whether he

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has remarried or has other children or whether his parents are dependent on him. In this way the
Court can determine the quantum of maintenance of minors.

Section 17(A) of the West Pakistan Family Courts Act, 1964 Sub-section 4

In this section the fixation of maintenance is provided, The Court has an authority to ask
for the relevant documentary evidence from any organization, body or authority to examine and
determine the estate and resources of defendant (father). The Objective of this provision is to
make easier for Courts in determining the financial capacity of the father.

The High Court (Ayesha A. Malik. J) stated that: The impugned judgment (11.1. 2018) passed
by the Additional District Judge has not determined the quantum and fixation of the maintenance
of minors and earning capacity of the father in a proper way. The Respondent no.1 (Additional
District Judge) did not examine the evidence properly. Therefore, both the Petitions are accepted
and the matter was returned to the Appellate Court for reconsideration.

______________________

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