Form No.

HCJD/C-121
ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT
Case No. WP No. 8514/2010
Ghafoor Ahmed Butt Versus Mst. Iram Butt etc.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of
proceeding Proceeding Parties or counsel, where necessary

06.05.2011 Mr. Ali Hussain Mohsin, Advocate for the petitioner.

Mr. Pervaiz I. Mir, Advocate for respondents No.1 to 4.

The petitioner is aggrieved by the learned Judge

Family Court’s orders dated 7.10.2009 and 24.11.2009,

affirmed by the learned Additional District Judge’s

judgment and decree dated 09.03.2010, whereby the

petitioner has been ordered to pay monthly maintenance

of Rs. 2000/- to Respondent Nos. 2, 3 and 4, aged 10

years, 9 years and 6 years, respectively, who are the

minor grandsons of the petitioner, being the sons of

petitioner’s son, respondent no.5 and his daughter-in-law,

respondent no.1.

2. Statedly, the marriage between respondent no.5

and respondent no.1, was solemnized on 05.11.2000

whereafter the couple lived together in the petitioner’s

house in Sialkot till 26.07.2005 when respondent no.5

left for Saudi Arabia where he is still living. However,

respondent No.1 continued living in the petitioner’s

house in Sialkot till 04.04.2009 when her relations with

W.P.No.8514-2010 2

her in-laws became so strained that she alongwith her

children, respondents No. 2 to 4, left the house of the

petitioner and shifted to Lahore to live with her parents.

On 01.05.2009, the petitioner alongwith respondents No.

4 are said to have deceitfully taken away the minors from

Lahore to the petitioner’s house in Sialkot. However,

when the minors were not returned to respondent No.1,

she filed a habeas corpus petition (Crl.

Misc.No.549/H/2009) wherein an order was passed by

this Court for the production of the minors who were

produced by the petitioner on 6.5.2009 when their

custody was handed over to respondent no.1.

3. It appears that the differences between the parties

became acute with the result that on 1.6.2009 respondent

Nos.1 to 4 filed a composite suit against respondent no.5

and the petitioner for the recovery of maintenance and for

the recovery of respondent no.1’s dowry articles and

personal property which were valued at 706,500/- and

Rs.9,86,000/-, respectively. The suit was accompanied by

an application under section 17A of the West Pakistan

Family Courts Act, 1964, for the fixation of interim

monthly maintenance of Rs. 30,000/-. On 01.06.2009, the

learned Judge Family Court, Lahore, issued notices to the

petitioner and respondent no. 5 for 13.06.2009 but none

appeared whereafter on 13.06.2009 substituted service of

W.P.No.8514-2010 3

notice through proclamation in the newspaper was

ordered for 02.07.2009 on which date appearance was

entered on behalf of the petitioner. Thereafter, on

27.07.2009 ex parte proceedings were ordered against

respondent No.5 for non-appearance. On 18.09.2009, a

reply was filed by the petitioner in response to

respondents No 1 to 4’s application for fixation of

interim maintenance. In his reply, the petitioner disputed

his liability to pay maintenance as paternal grand father

in the presence of the father, respondent no.5, who was in

Saudi Arabia. After hearing arguments as to the liability

of the petitioner to pay interim maintenance, the learned

Family Judge vide order dated 7.10.2009 found that the

petitioner was liable to maintain the minors as their father

was abroad and directed the petitioner to pay monthly

maintenance of Rs.2000/- to each of the three minors

with effect from the date of filing of the application i.e.

01.06.2009 and to pay the future interim maintenance at

the same rate on or before 14th of every succeeding

month. On 29.10.2009, petitioner’s counsel sought

adjournment on the ground that the petitioner was ill and

made a statement that the interim maintenance allowance

will be paid on the next date of hearing fixed for

14.11.2009 when, however, the petitioner alongwith his

counsel appeared and admitted the non-payment of the

W.P.No.8514-2010 4

interim maintenance with the undertaking that it would

be paid on the next date of hearing and in

acknowledgement of his undertaking, the petitioner

affixed his thumb impression on the order sheet dated

06.11.2009 whereafter the learned Judge Family Court

adjourned the case to 14.11.2009 and gave final

opportunity to the petitioner to pay the interim

maintenance allowance. On 14.11.2009, no proceedings

could take place as the learned Judge Family Court was

on leave and the case was adjourned to 17.11.2009 when

again the case was adjourned at the joint request of the

counsel to 20.11.2009 alongwith the order for payment of

interim maintenance. On 20.11.2009, the case was

adjourned to 24.11.2009 due to lawyers strike. The

interim maintenance, having not been paid on

24.11.2009, the learned Judge Family Court struck off

the right of defense of the petitioner and also decreed the

suit under section 17A of the West Pakistan Family

Courts Act, 1964, to the extent of allowing monthly

maintenance of Rs. 2000/- to each of three minors,

respondents No. 2 to 4, with effect from date of

institution of the suit i.e. 1.6.2009 till their majority

alongwith 10% annual increment. Against the learned

Judge Family Court’s order dated 24.11.2009, an appeal

was filed which has been dismissed by the learned

W.P.No.8514-2010 5

Additional District Judge through his judgment and

decree dated 09.03.2010.

4. While challenging the orders/judgments and

decrees of the learned courts below, it has been

contended that the petitioner, being the paternal grand

father of the minors, is not liable to pay any maintenance

as it is the minors’ father, respondent no.5, who is liable

and his mere absence from Pakistan cannot pass on the

liability to the petitioner. In this regard, reliance has been

placed on Ghulam Nabi versus Muhammad Asghar and 3

others (PLD 1991 Supreme Court 543). It is further

pleaded that the petitioner, being 70 years old, has no

source of income and receives no money from his son,

respondent No.5, who is jobless in Saudi Arabia.

5. On the other hand, learned counsel for respondent

Nos. 1 to 4 has lent his full support to the impugned

judgments and decrees and has argued that the petitioner,

being the paternal grand father of the minors, is liable in

the absence of the father who has failed or is unable to

maintain his children. In support, the learned counsel has

referred to Abdul Ghani versus Muhammad Ashfaq and

others (1994 CLC 444), Haji Nizam Khan versus

Additional District Judge, Lyallpur and others (PLD

1976 Lahore 930) and Abdullah versus Jawaria Aslam

W.P.No.8514-2010 6

and 2 others (2004 YLR 616). Learned counsel has also

submitted that the petitioner never challenged the Judge

Family Court order dated 7.10.2010 for interim

maintenance and in fact accepted it and gave an

undertaking before the Judge Family Court to pay the

interim maintenance and also sought several

adjournments to pay the same. The case of Mavra Arshad

versus Sheikh Ehsan Ghani (2005 SCMR 1293) has been

cited wherein it was laid down that a commitment made

before the court to pay maintenance has to be honoured.

It has also been argued that the petition cannot disown

his liability to pay maintenance to the minors as they

were recovered from him and produced before this Court

as is evident from this Court’s Order dated 06.05.2009

passed in Crl. Misc.No.549/H/2009.

6. I have given due consideration to the arguments

advanced on behalf of the parties and have also gone

through the available record.

7. The main issue raised in this petition is with

respect to Family Judge’s order dated 24.11.2009 which

was passed under section 17A of the West Pakistan

Family Courts Act, 1964 for petitioner’s non-compliance

with Family Judge’s order dated 07.10.2009. It is on

record that the petitioner appeared in the Court on

W.P.No.8514-2010 7

29.10.2009 and undertook to pay the interim maintenance

for which he was given several opportunities but still he

did not pay. The petitioner cannot dispute the

undertaking given by him as order dated 29.10.2009

bears his thumb impression in acknowledgement of his

undertaking to pay the interim maintenance. It appears

that till 20.11.2009 the petitioner availed several

opportunities to pay the interim maintenance. As is

shown by orders dated 17.11.2009 and 20.11.2009, the

petitioner never disowned his liability to pay the interim

maintenance when the case was adjourned allowing him

further time to pay the interim maintenance. Thus, the

petitioner accepted his liability to pay the interim

maintenance as he committed to pay it and also availed

various opportunities to pay it. The petitioner’s

categorical commitment on 29.10.2009 to pay the interim

maintenance before the Family Judge could not be

ignored but had to be honoured. After accepting his

liability to pay the interim maintenance, the petitioner has

made a volte face to deny his liability which cannot be

allowed. It would of benefit to refer here to Mavra

Arshad versus Sheikh Ehsan Ghani (2005 SCMR 1293)

where the Honourable Supreme Court did not allow a

father and grandfather to back out of their counsel’s

commitment made before the Honourable Supreme Court

W.P.No.8514-2010 8

to pay maintenance to the minor. It is also to be noted

that the petitioner had not challenged the Family Judge’s

order dated 7.10.2009 but has challenged it only after the

order dated 24.11.2009 was passed in consequence of

petitioner’s non-compliance of the order dated 7.10.2009.

The petitioner is estopped from assailing order dated

07.10.2009 which he undertook to comply with. As such,

the Family Judge’s order dated 24.11.2009, passed

against the petitioner, cannot be challenged as it is the

necessary consequence of the petitioner’s non-

compliance of the Family Judge’s order dated 07.10.2009

in view of the provisions of section 17A of the West

Pakistan Family Courts Act, 1964. At the same time, it

has to be said the quantum of monthly maintenance,

being Rs. 2000/- for each minor, decreed by the learned

Family Judge is not only reasonable but is also exactly

the same as was ordered by way of interim maintenance

earlier.

8. There can be no cavil to the proposition that as a

rule the paternal grandfather is bound to maintain his

grand children, if their father is not alive. In support,

reference may be made to Abdul Ghani versus

Muhammad Ashfaq and others supra where it was held

that the paternal grandfather was under an obligation to

provide maintenance to the children of his pre-deceased

W.P.No.8514-2010 9

son even though he was an old man and only owned a

small piece of land. Similarly, Haji Nizam Khan versus

Additional District Judge, Lyallpur and others supra

emphasizes the obligation of a paternal grandfather to

maintain his needy grand-children who have a

corresponding right to be maintained by their paternal

grandfather. Such an obligation or right is not limited in

scope and cannot be excluded where the father, though

alive, cannot or does not attend to the needs of his

destitute minor children. This is what appears to have

happened in the present case as the father of the minor

children, alive and living in Saudi Arabia, is unwilling or

is unable to discharge his obligation of maintaining his

minor children. In the circumstances, the petitioner,

being the paternal grandfather, must be burdened with the

liability to support his minor grandchildren who have no

means or source of income to take care of their basic

needs. The paternal grandfather is bound to maintain his

minor grand children in need regardless of whether or not

they are orphans with the difference in the former case

the paternal grandfather has the right to be reimbursed by

the father of minors. It is also important to note that the

petitioner willingly and happily kept the minors in his

house till they were recovered from him pursuant to the

Order dated 06.05.2009, passed by this Court, in

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Crl.Misc.549-H-09. In any case, there can be no doubt

about the liability of the petitioner to maintain his

grandchildren after his categorical undertaking given

before the Family Court on 29.10.2009. Ghulam Nabi

versus Muhammad Asghar and 3 others supra was cited

by the learned counsel for the petitioner to contend that

in the presence of the father, the paternal grandfather

cannot be burdened with the obligation of providing

maintenance to his grandchildren. However, the said

precedent is distinguishable and is of no help to the

petitioner as it involved the issue of liability of a father

when his children were being maintained by their

maternal grand-parents.

9. For the foregoing reasons, I find no illegality or

irregularity in the impugned orders and

judgments/decrees of the learned courts below.

Accordingly, this writ petition is dismissed leaving the

parties to bear their own costs.

(Asad Munir)
Judge
Special Bench Family-I

Approved for reporting

Judge

Wasif