Mst. Ramsha and Another (Petitioner) VS Family Judge, Karachi East and Another (Respondent)

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.S-1211 of 2023 [Mst. Ramsha & others ......v.....Family Judge East, Karachi & others] Date of Hearing : 02.02.2024

Petitioners through : Mr. Aurangzeb, Advocate.

Respondents through : Mr. Muhammad Yousif Narejo, Advocate for respondent No.2.

ORDER

Zulfiqar Ahmad Khan, J:- This petition challenges an order dated 18.10.2023 (“impugned Order”) passed by learned respondent No.1 in G & W Application No.4424/2022 whereby the respondent No.1 fixed the maintenance of respondent No.2 (“minor”) at the rate of Rs.15000/- per month.

2.The anxiety of the petitioner is that the minor is going to school whose monthly school expenses are more than Rs.30,000/- as well as Rs.20,000/- towards miscellaneous and medical expenses are also required but the learned respondent No.1 failed to consider the factual aspect of the matter and fixed the maintenance of the minor at the rate of Rs.15000/- per month, however, the monthly salary of the respondent No.2 is more than 1,40,000/-, therefore, the maintenance amount fixed by the learned respondent No.1 be increased to Rs.50,000/-.

3.Learned counsel for the respondent No.2 contended that the instant petition is not maintainable as the same challenges an interim order passed under Section 17-A, therefore, the instant petition be dismissed and let the respondent No.1 to proceed with the matter

and pass an final decree whereby the final maintenance of the minor would be determined.

4.I have heard the arguments of learned counsel for the petitioner and examined the available record. In Pakistan, issues related to child maintenance are dealt with by the Muslim Family Laws Ordinance, 1961, and the West Pakistan Family Courts Act, 1964. However, these laws do not provide a specific definition for "maintenance." For better understanding it is suitable to rely on the dictionary meaning of the term. 8. The word “maintenance” is derived from Arabic word “Nafaq” which means “to spend” and in literal sense, the word “nafaqah” means what a person spends on his family. The word “maintenance” has been defined in Black’s Law Dictionary1 as under:

“Financial support given by one person to another.”

5.It has been defined in Section 369 of the Principles of Muhammadan Law by D.F Mulla in following words: “369.

Maintenance defined.

“Maintenance” in this Chapter includes food, raiment and lodging.”

6.Such definition of maintenance is not exhaustive. The word “includes” is generally used in interpretation clauses in order to enlarge the meaning of words or phrases, occurring in the body of the Statute; and when it is so used those words or phrases must be construed as comprehending, not only such things as they signify Blacks Law Dictionary 9th Edition 2009

according to their natural import, but also those things which the interpretation clause declares that they shall include.

7.In this view of the matter, it does not exclude other necessary expenses for mental and physical well-being of a minor. This view is also fortified by the judgment in Arslan Humayun and another 2 wherein it was held that Section 369 ibid has a wider connotation and should be given an extended meaning, for the purposes of social, physical, mental growth, upbringing and wellbeing of the minor.

8.Undeniably, the Almighty Allah is the only sustainer, but, He has created means through which this task is accomplished. Bearing the expenses of children is the second most important task of the father3.

9.In Islamic law “maintenance” is termed as Nafaqah and signifies all those things which are necessary to support life. It is the legal and religious duty of a man to maintain his wife and children.

The obligation to maintain wife and children is derived from the Holy Quran and is one of the incidences of marriage. Verse 233 of Surah Al-Baqarah says:

“...and it is incumbent upon him who has begotten the child to provide in a fair manner for their sustenance and clothing4.”

10.Furthermore, Verse 34 of Surah An-Nisaa enjoins:

“Men are the protectors and maintainers of women because God has given the one more

PLD 2013 SC 557

Nasr, Sayyad Hossein, Islmaic Spirituality Foundations, Crossroad,New York, 1987.page Holy Qur’an, 2:233

(strength) than the other and because they support them from their means.”

11.Thus, right of child to be maintained by the father is ordained by Islamic law as mentioned above.

12.Similarly, under Pakistani law, the maintenance of a child is an obligation primarily upon the father. The Family Courts Act 1964 and the Muslim Family Laws Ordinance 1961 (“MFLO”) deal with the issue of maintenance of minors in Pakistan.

13.All the civilized nations of the world have recognised that children have rights by virtue of being children. These obligations are also erga omnes5 and have since been codified in the United Nations Convention on the Rights of the Child, 1989 (the “UNCRC”). UNCRC is an international treaty which sets out the rights of children. The State of Pakistan ratified the UNCRC on 12.11.1990 with its only reservation that its Articles will be interpreted in light of Islamic injunctions.

However, in 1997, this reservation was withdrawn, thus, ratification became absolute.

14.Article 27 of the UNCRC is reproduced below for ease of reference;

1.States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2.The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the Erga omnes means those obligations that are owed to international community as a whole.

conditions of living necessary for the child's development.

3.States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4.States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

15.Said Article must be read with Article 3 paragraph 1 of the UNCRC, which reads as under

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

16.The concept of the “child's best interests” is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child6, the Convention on the Elimination of All Forms of Discrimination against Women, 19797, as well as in regional instruments and many national and international laws8.

Declaration of Rights of Child, 1959, para.2 Article 5(b) and 16(1)(d).

8 UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, para.2

17.When assessing and determining the best interests of a child the obligation of the State to ensure the child such protection and care as is necessary for his or her well-being9 should be taken into consideration. Children’s well-being, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as needs for affection and safety 10.

18.It is in the best interests of the child to have access to quality education, including early childhood education. All decisions on measures and actions concerning a specific child must respect the best interests of the child or children, with regard to education11.

19.The above discussion leads me to draw a conclusion that it would be absolutely safe to include educational expenses also within the concept of maintenance of a child. Admittedly, minor is studying in school, thus, in order to meet his educational expenses and other miscellaneous including medical, he requires sufficient amount, therefore, looking into the school expenses of the minor as well as rate of inflation, the respondent No.2 is directed to pay maintenance of the petitioner No.2(minor Shahzain) at the rate of Rs.50,000/- per month. The petition is disposed of accordingly.

Karachi Dated: 31.01.2024.

JUDGE

Aadil Arab.

UN Convention on Rights of Children, 1969, Article 3 para 2 UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14,para 71.

Ibid., para 79.