Muhammad Saeed Anwar Vs Learned Judge Family Court etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P. No.26445/2022

Muhammad Saeed Versus Judge Family Court, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of proceeding Proceeding counsel, where necessary 10.02.2026 Mr. Qayyum Aslam Khan, Advocate for petitioner.

M/s Azam Ali and Mian Ahsan Raza, Advocate for respondents No.2 to 4.

This constitutional petition questions legality of concurrent decrees of maintenance, whereby the petitioner, who is paternal uncle of the minors, was made liable to pay the maintenance for one of the minor, since other minor had attained majority.

2.Learned counsel for petitioner claims that maintenance was allowed while relying on paragraph 373 of D.F’s Mullah Muhammadan Law, which renders decision legally perverse and contrary to the mandate of ratio settled in the case of Mahnoor Shabbir v. Additional District Judge and others (2024 CLC 513). It is stressed that in absence of statutory obligation qua the liability of paternal uncle no claim of maintenance could be decreed.

3.Conversely, learned counsel for respondents defended judgments while referring to the case of Bashir Ahmad V. Additional District Judge, Hafizabad and others (PLD 2024 Supreme Court 67).

4.Jurisprudence settled regarding the obligation of paternal grandfather is well-settled, wherein slight shift was introduced after decision in the case of Bashir Ahmad (supra), wherein, in the context of circumstances of said case, impleading of grandfather in a suit for maintenance was held essential before burdening him with the obligation to maintain minors – without commenting on the consequence qua the circumstances where father dies or is rendered disable during pendency of maintenance suit and requirement of filing a fresh suit against grandfather, to begin the process from the scratch. Case of Bashir Ahmad (supra) has no application because claim was filed against paternal grandfather, who died during proceedings and is represented through heirs – and it was specifically pleaded that petitioner was the beneficiary of the property of grandfather upon his death and there is an allegation that part of property, belonging to grandfather was allegedly transferred during pendency of claim against grandfather.

5.Evidence is examined and wherefrom it is established that grandfather was resourceful man, who paid interim maintenance for the minors pursuant to the order of the Court. It is claimed that minors went to live with mother four-five months before the filing of suit in 2019. This is sufficient to establish acknowledgment of responsibility by grandfather. I refrain from commenting on lack of responsibility of paternal uncle qua minors of his deceased brother in the context of circumstances and leave it for

determination of the court, which is exercising inquisitorial jurisdiction with respect to the affairs of minors. To the extent of facts of this case, it is evident that grandfather had not abandoned the minors and part of his property was transferred to petitioner during pendency of the suit – this is alleged by respondent No.4 in her statement as PW-1. This is crucial. Whether transaction meet the test of bona fide transaction or intended to deny entitlement of the minors to receive maintenance from resourceful grandfather. Courts have not considered this aspect of the matter. There is nothing in section 5, 17-A and Schedule of Family Courts Act 1964 to confine the obligation of maintenance to the extent of father – legislature treaded this path cautiously and used expression ‘defendant’. Who shall be the defendant? This question has to be answered in the context of the facts of each case. We, judges, cannot legislate and narrow/restrict the scope of responsibility of maintenance of minor. Case of Mahnoor Shabbir (supra) is per incuriam qua the provisions of Family Courts Act 1964 and has no application.

6.Scope of transaction of Hiba bearing 3332 dated 16.10.2019 merits determination, which requires recording of additional evidence – if so desired by the parties - and appreciation of facts de novo in the context of facts, circumstances and additional evidence. This determination, factual in character, cannot be undertaken under judicial review jurisdiction. I prefer to send this matter to appellate court for re-determination of the matter in issue and decision afresh.

7.In these circumstances, this petition is allowed, impugned judgment and decree dated 19.02.2022 is set aside and matter is remanded to appellate court, where appeal of the petitioner shall be deemed pending. Appellate court shall allow opportunity to the parties to lead additional evidence and thereafter decide appeal afresh, in the context of observations recoded hereinabove and without being influenced – [observations noted shall be for reference only].

(ASIM HAFEEZ)

JUDGE

Approved for reporting.

JUDGE

Imran/*