Fatima Raees and another Vs Raees Ahmad and others

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

W.P No. 56-D/2024

Fatima Raees and another Vs Raees Ahmad and others

W.P No. 169-D/2025

Raees Ahmad Vs Fatima Raees and others

Date of hearing 08.10.2025

JUDGMENT

Inam Ullah Khan, J.-

1.This judgement addresses the aforementioned two writ petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 concerning a common legal and factual issue. The petitions have laid challenge to the findings of the learned appellate Court, rendered in proceedings emanating from the petition filed by the petitioners, whereby through judgement dated 13.12.2023, the appeal filed by the petitioners was allowed and accepted.

2.Brief resume of the case are that the petitioners filed a a petition for enhancement of maintenance allowance against the

respondent seeking enhancement of maintenance allowance @ Rs.

10,000/- per month for each petitioner with 20% annual increase.

They also prayed for recovery of Rs. 30,000/- and Rs. 60,300/- as medical and admission charges respectively. After being summoned, the respondent/father appeared and contested the petition by filing written statement. Learned trial court, after recording evidence of the parties, partially allowed the petition of the petitioners vide order dated 28.4.2022.

3.Being not content with the said judgment, the petitioner preferred appeal before learned Additional District Judge-III, D.I.Khan and after hearing learned counsel for the parties, the learned appellate Court, allowed the appeal of the petitioners vide judgement and decree dated 13.12.2023 which is now being challenged in the present writ petition.

4.Learned counsel for the petitioners contends that the respondent possesses sufficient sources of income, being the absolute owner of a house and several shops situated in Ghalib Gilani Commercial Complex. It is further submitted that the respondent has a family from his second marriage, is financially well-off, and can easily afford an enhancement in the maintenance of the petitioners. The learned counsel argues that the amount of maintenance fixed by the Appellate Court is meagre, particularly in the prevailing era of unprecedented price escalation, and that the Appellate Court failed to assign any cogent or plausible reasoning for fixing maintenance at merely Rs. 6,000/- per month for each petitioner, which is wholly insufficient to meet their living and educational expenses. She lastly argued that the petitioners are presently pursuing education at the graduate level; therefore, the

quantum of maintenance allowance fixed by the Appellate Court is wholly inadequate to meet their educational and subsistence needs.

5.Conversely, learned counsel for the respondent contends that the appellate Court, while fixing the quantum of maintenance, has not considered the evidence on record regarding the respondent’s income, liabilities, and overall financial condition. The figure of Rs. 6,000/- per month per petitioner was fixed arbitrarily. It is submitted that the respondent has already made payment which reasonably covers their ordinary educational and living expenses in accordance with the respondent’s financial means. The plea for further enhancement on the ground of higher studies is therefore misconceived, as maintenance under the law is intended to ensure sustenance and essential needs, not to provide for luxurious or extravagant standards of living beyond the respondent’s proven financial capacity.

6.Arguments heard and record perused.

7.The pivotal question requiring determination is whether a muslim father is under a legal obligation to bear the educational expenses of his children, or whether such expenses are encompassed within the broader ambit of ‘maintenance.’ To resolve this issue, it becomes essential to examine the true import and legal definition of the term ‘maintenance’ as recognized under Islamic law and statutory provisions governing family relations.

The issue 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.

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 Dictionary, as under:

"Financial support given by one person to another.

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."

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

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 education.

The above discussion leads this Court to draw a conclusion that it would be absolutely safe to include educational expenses also within the concept of maintenance of a child.

8.Admittedly, the petitioner No. 1 (Fatima Raees) is the unmarried daughter of the respondent who is

studying in University, thus, in order to meet their educational expenses, she requires sufficient amount. In the trial as well appellate court the petitioner No.1 has sufficiently established, with cogent evidence, that besides having ownership of house and shops, the respondent/father has other sufficient sources of income. The ground taken by the respondent that his financial position does not permit him to enhance the maintenance allowance is not convincing in nature, for the reason that nothing has brought on record to rebut the stance of the petitioners. In absence of any evidence, it cannot be said that he is not in a position to pay the maintenance allowance.

9.Now adverting to the other issue involved in this petition regarding the increase in maintenance allowance. It may be observed that a father is under obligation to maintain his children till they attain the age of majority in the case of male and the daughters till they are married. Law does not debar minor children to claim the maintenance allowance even after attaining the age of majority as laid down in a case reported as Omar Ali Sheikh v.

Mst. Shamsunahar Begum (PLD 1967 Dacca 575), it has been observed as under:--

"..........the law permits the children to claim maintenance even after attainment of the age of majority, if they are unable to maintain themselves. In this case, all the children are minors and an agreement made on their behalf depriving the children of their statuary right is not enforceable....."

In another case reported as Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75), it has been observed as under:-- ........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 a livelihood. But this again is a question which will depend upon the status and circumstances of each individual family. 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. Thus an infirm or decrepit or deformed son or daughter may be entitled to claim maintenance even up to a very advanced age, while an able-bodied son or daughter might be deprived of the right if he/she has already fund suitable gainful employment and is in a position to maintain himself or herself.

However, it is a settled principle that once the children attain the age of majority and have independent means of livelihood, the father is no longer legally bound to maintain them. In the present case, the decree was passed in November, 2011, whereby the defendant-father was directed to pay Rs. 1200/- per month as maintenance allowance with periodic increase. At the time of passing the decree, the petitioners were aged 7 and 5 years respectively. Now, after a lapse of more than 14 years, the cost of living has substantially increased. It is also evident that petitioner No. 2, Afaq Raees (son), has attained the age of majority and, therefore, is no longer entitled to receive maintenance allowance.

10.Resultantly, for the reasons recorded hereinabove, W.P. No. 56-D/2024 is partly allowed to the extent that petitioner No. 1, Ms. Fatima Raees (daughter), is held entitled to receive Rs. 10,000/- (Rupees ten thousand only) per month as maintenance allowance, with a periodic increase at the rate of 20% per annum.

Except to the above extent, since petitioner No. 2, Mr. Afaq Raees (son), has attained the age of majority, he is no longer entitled to receive maintenance allowance, and to his extent, the petition stands dismissed. Consequently, the impugned judgment and

decree dated 13.12.2023, passed by the learned Additional District Judge-III, D.I.Khan, is set aside. The connected W.P. No. 169- D/2025, filed by the respondent Raees Ahmad, being devoid of merit, stands dismissed.

Announced

JUDGE

(S.B) Hon’ble Mr. Justice Inam Ullah Khan