Akhter Hussain AWan etc Vs Naseer Akhtar Awan etc

Stereo. H C J D A 38 Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Writ Petition No.55956 of 2020

Akhtar Hussain Awan, etc. versus Naseer Akhtar Awan, etc.

Date of hearing 04.05.2026

Petitioners by Muhammad Muzammil Qureshi,

Advocate.

The respondent by Zaeem Mumtaz Bhatti, Advocate.

Mohsin Akhtar Kayani, J. Through this writ petition, petitioners Akhtar Hussain Awan and others have assailed the judgment and decree dated 27.08.2020 and 18.02.2020 passed by the Judge Family Court as well as the first appellate Court concurrently in a suit for maintenance allowance filed by Naseer Akhtar Awan (minor) through his real mother/next friend/natural guardian Mst. Sadia Awan.

2.Learned counsel for the petitioner contends that petitioner Akhtar Hussain Awan was married to Mst. Sadia Awan on 25.12.2002 at Naika Pura, Silakot City and Naseer Akhtar Awan was born from the said wedlock on 04.07.2004. The respondent earlier filed a suit for maintenance for herself and the minor which was disposed of on the basis of a compromise on 14.05.2007 before Judge Family Court, Sialkot and it was agreed that the petitioner Malik Akhtar Hussain will pay sum of Rs.60,000/- as maintenance of the respondent/mother as well as the minor Naseer Akhtar and nothing has been due against the petitioner’s side even the entire dowry articles as well as the

jewelry has already been transmitted to the respondent side, parties have agreed not to challenge any issue in future and in case of any violation of those agreed terms and conditions, the party violated the terms will be imposed with cost of Rs.10,00,000/- but despite all, present suit for maintenance was filed on 09.06.2019 with the claim that maintenance has not been provided to the Naseer Akhtar Awan the minor from August 2006 with 20% enhancement annually. He further contends that the courts below have not appreciated the legal position in terms of Section 17 of “The Family Courts Act, 1964” read with Section 10 of the Civil Procedure Code which is applicable to the preposition in question and on the basis of principle of res- judicata, the family suit for maintenance is not maintainable, the same is liable to be dismissed. Learned counsel for the petitioner further relied upon judgments reported as PLD 2006 SC 457 Mst. Farah Naz versus Judge Family Court, Sahiwal & 2018 YLR 645 titled Shagufta Bibi and others versus Amanat Ali, etc.

3.Conversely, learned counsel for the respondent contends that the Courts below have rightly passed the judgment and decree as there is no bar upon a minor to claim the maintenance even no one is allowed to record any conceding statement on behalf of the minor depriving the minor from his lawful rights and such contract or undertaking as claimed by the petitioner’s side is against the public policy. He relied upon case laws reported as 2023 SCMR 584 (Syed Hammad Nabi versus Inspector General of Police Punjab, Lahore), 2022 SCMR 765 (Nuabahar Bottling Company (Pvt) Limited and others versus Federation of Pakistan and others), 2007 SCMR 761 (Mst. Muhammadi and others versus Ghulam Nabi and others) & 2022 MLD 1363 (Muhammad Khalid versus Additional District Judge).

4.Arguments heard. Record perused.

Writ Petition No.55956/2020 3

5.Perusal of record reflects that petitioner No.1 was married to the mother of respondent No.1/Naseer Akhtar Awan i.e. Mst. Sadia Awan on 25.12.2002 in Sialkot City and respondent No.1 was born from the wedlock on 04.07.2004. The party’s initial relationship remained cordial but after some time a matrimonial dispute accrued between the parties. The petitioner No.1 was settled in Germany and was a businessman having ownership of multiple properties, was sued for maintenance claim of the minor as well as of Sadia Awan, the wife of Akhtar Hussain Awan and during the course of those proceedings, the matter was settled between the parties as per claim of the petitioner and an affidavit has been filed by Mst. Sadia Awan before the Judge Family Court, Sialkot dated 04.07.2005 referred as “Mark-A” on the following terms:-

) )2من مظہر ہ نے ملک اختر حسین مذکور مبلغ 60ہزار روپے نقد بطور خرچہ نان نفقه من مظهرہ و نا با لغ و صول کر لیا ہے اور من مظہر ہ اختر حسین مذکور سے اس کے عالوہ کسی قسم کا خرچہ ہمیشہ کے لئے نان و نفقہ وصول کرنے کی حقدار نہ ہے اور مبلغ 60ہزار روپے تاحیات خر چه نان نفقہ من مظہر ہو نا بالغ متصور ہوگا۔ ) )3من مظہرہ نے سامان جهیز و انگو ٹهی طالئی و طالئی ٹاپس اور 5ہزار روپے نقد بطور Compensationطالئی زیورات و حق مہر مبلغ 1,000روپے اختر حسین سے وصول کر لئے ہیں۔ اس کے عالوہ کسی قسم کا سامان جہیز و زیورات وغیرہ کا لین دین اختر حسین کے ذمہ نہ ہے۔

) )4من مظہر کا اور نا بالغ مسمی نصیر اختر کا اختر حسین وغیرہ سے کوئی لین دین بقایا نہ ہے۔

) )5من مظہرہ آئندہ کسی قسم کا دعوئی بسلسلہ لین دین بر خالف اختر حسین وغیرہ دائر نہ کرے گی اور دعوی دائر کرنے کیصورت میں من مظہر ہ اختر حسین کو مبلغ 10الکه روپے بطور ہرجانہ ادا کرنے کی پابند ہوگی ۔

) )6نصیر اختر نابالغ من مظہرہ کے پاس رہے گا اس کی دیکه بهال وخرچہ نان و نفقہ من مظہرہ کے ذمہ ہوگا اور من مظہر کے پاس نا بالغ کے رہنے پر اختر حسین کو کوئی اعتراض نہ ہے۔

6.Upon plain reading of the terms of compromise placed on record, it appears that a restriction was sought to be imposed upon respondent Mst. Sadia Awan as well as the minor Naseer Akhtar Awan to the effect that no claim for maintenance would be raised in future and no legal proceedings relating thereto would ever be instituted. Such a stipulation requires examination in the context of Section 28 of the Contract Act, 1872, which declares that every agreement by which a party is absolutely restrained from enforcing his legal rights through ordinary legal proceedings is void to that extent. The object of the said provision is to ensure that no person is deprived, by private arrangement, of recourse to a Court of competent jurisdiction for enforcement of a lawful and vested right.

7.In this regard, this Court has derived guidance from judgments reported as 2022 MLD 1363, Muhammad Khalid and others versus Additional District Judge and others; PLD 2006 SC 418, Rasheedur Rehman Khan versus Mian Iqbal Hussain; and 1992 SCMR 1970, Ghulam Samdani versus Abdul Hameed. These authorities consistently affirm that any contractual term having the effect of absolutely barring a party from pursuing a lawful remedy before a Court of law is hit by Section 28 of the Contract Act and is un-enforceable to that extent.

8.Applying the aforesaid principle to the facts of the present case, even if it is assumed that the parties were competent to settle the maintenance claim relatable to the period then accrued, any condition purporting to permanently waive or extinguish the future right of the minor to claim maintenance during the period of legal dependency would be contrary to law and incapable of enforcement. A distinction must, therefore, be drawn between settlement of an accrued claim and waiver of a future and continuing legal right, the latter being impermissible where the rights of a minor are involved.

9.Even otherwise, minor Naseer Akhtar Awan, at the relevant time, was admittedly under legal disability and was not competent to enter into a contract in terms of Section 11 of the Contract Act, 1872. Any agreement entered into on behalf of a minor, if prejudicial to his vested rights, cannot bind the minor merely by reason of consent given by others. No doubt, the law recognizes limited exceptions where an arrangement concerning a minor may be upheld if demonstrably for his welfare and benefit; however, no such beneficial element is discernible from the compromise in question. Rather, the stipulation seeks to deprive the minor of his continuing right of maintenance for the entire period of dependency, which is ex facie adverse to his welfare and legal interest. Consequently, such a condition cannot be specifically enforced and is void to that extent.

10.Now adverting to the second question relating to Section 17 of the Family Courts Act, 1964, it is evident that the Code of Civil Procedure, 1908 and Qanun-e-Shahadat Order, 1984 have generally been excluded from proceedings before the Family Courts, except to the limited extent of Sections 10 and 11 of the Code of Civil Procedure, 1908. The legislative intent behind retaining the applicability of Section 10 of the Code is to prevent multiplicity of proceedings and to discourage parties from simultaneously invoking multiple forums in respect of substantially the same cause of action. Likewise, Section 11 embodies the well-settled principle of res judicata, which bars re- agitation of an issue that has already been directly and substantially in issue in a former suit between the same parties, or persons claiming through them, litigating under the same title, and has been finally and conclusively determined by a Court of competent jurisdiction.

11.There is no dispute that, in the present case, an earlier suit for maintenance was instituted and the same was disposed of on the basis of a compromise between the parties. However, the real question requiring determination is whether, by virtue of the said compromise, the independent and continuing right of the minor to claim maintenance stood conclusively determined for all times to come, including the entire period of his legal dependency. The answer, in the considered view of this Court, is in the negative.

12.The principle of res judicata applies only where the cause of action is complete, final, and incapable of recurrence. A claim for maintenance of a minor, by its very nature, does not constitute a concluded or exhausted cause of action; rather, it gives rise to a recurring and continuing cause of action, as the obligation of the father to maintain his minor child accrues from day to day and month to month basis so long as the child remains legally dependent and incapable of self-support. Consequently, while a compromise or adjudication in a former suit may regulate or settle the claim relatable to a particular period, it cannot, in the absence of express statutory authority, extinguish the future and vested right of a minor to seek maintenance during the subsistence of such dependency.

13.The rule of res judicata is founded upon the principles of finality in litigation, public policy, and protection against double vexation, so that no person may be harassed twice over the same concluded cause and that there may be an end to litigation. However, the said principle cannot be extended in a manner that defeats a continuing statutory and divinely imposed obligation, particularly where the beneficiary is a minor suffering from legal disability and incapable of protecting his own vested rights.

14.I have considered entire proposition from another angle especially with regard to conclusive finding of the former court in

the former suit whereby no such decree has been passed that the minor would not claim any future maintenance. Therefore, the matter in issue is not directly or substantially the same as claimed in the present suit. There is no declaration of any competent Court of law that future maintenance claim stands extinguished by virtue of decree passed in the earlier suit. Even otherwise, it does not fit in within the doctrine of constructive res-judicata. Similarly, future maintenance claim is based upon different cause of action, which is otherwise recurring.

15.Under the law, every father is under a legal as well as moral obligation to maintain his wife and minor children in all respects. Such obligation is neither optional nor contingent upon the will of the father, rather it is a continuing responsibility imposed by law as well as by the injunctions of Islam. A father, therefore, cannot be permitted to evade or contract himself out of such responsibility, particularly where the rights of a minor are involved, who, being under legal disability, is neither competent to enter into any compromise adverse to his interest nor can his vested right of maintenance be bartered away by any arrangement prejudicial to his welfare. The right of maintenance belonging to a minor is an independent and continuing right, and any compromise or private arrangement having the effect of permanently extinguishing such right would, to that extent, be unenforceable being contrary not only to settled principles of law but also to the injunctions of the Holy Qur’an and Sunnah. The obligation of a father to maintain his minor child encompasses provision for food, clothing, shelter, education, healthcare, security, and all such necessities reasonably required for the upbringing and dignified development of the child.

This Court has examined the matter in the light of the injunctions of the Qur'an and Sunnah. Qur'an, in Surah Al-Baqarah (2:233), commands:

“...And upon the father is the mothers’ provision and their clothing according to what is reasonable...”

Although the aforesaid verse directly addresses the obligation of the father in the context of nursing mothers, the jurists of Islamic law, particularly under the Hanafi school, have consistently derived therefrom the broader principle that where the Holy Qur’an imposes upon the father the responsibility of maintaining the mother on account of the child, the obligation to maintain the child himself stands established with even greater force. The said obligation, therefore, is not temporary or exhaustible by a one-time arrangement, but continues so long as the child remains dependent and incapable of self-support.

This principle stands further reinforced by Qur'an, Surah Al-Talaq (65:7), wherein Allah Almighty commands:

“Let a man of wealth spend according to his means, and he whose provision is restricted, let him spend from what Allah has given him.”

The command leaves no manner of doubt that financial hardship may regulate the quantum of maintenance, but never extinguishes the obligation itself. Likewise, it is narrated in Sahih al- Bukhari and Sahih Muslim that when Hind bint Utbah complained before the Holy Prophet (peace be upon him) regarding the failure of her husband to adequately maintain her child, the Holy Prophet (peace be upon him) permitted her to take from his property “that which is sufficient for you and your child according to what is customary.” This Prophetic guidance unmistakably recognizes

maintenance of a child as an enforceable right and a continuing obligation of the father, which cannot be defeated by neglect, omission, or private compromise to the detriment of the minor.

16.The third important question arising for determination in the present case relates to the period of limitation governing a claim for past maintenance. Learned counsel for the petitioner has vehemently contended that Article 120 of the Limitation Act, 1908 governs such claim and, therefore, recovery of past maintenance cannot extend beyond a period of six years. In support of the said contention, reliance has been placed upon judgments reported as PLD 2006 SC 457 (Mst. Farah Naz versus Judge Family Court, Sahiwal) and 2018 YLR 645, (Shagufta Bibi and others versus Amanat Ali and others).

17.There can be no cavil with the settled proposition that the law of limitation, being a statute of repose, is enacted to ensure certainty in civil claims and to compel litigants to pursue their remedies within the time prescribed by law. It is equally settled that the law of limitation assists the vigilant and not the indolent; that its provisions are to be construed strictly; and that, by virtue of Section 3 of the Limitation Act, 1908, the question of limitation can be examined at every stage of judicial proceedings, including appellate, revisional, and constitutional jurisdiction. It is further settled that limitation is not a mere technical rule of procedure but creates a legal bar to the enforcement of an otherwise enforceable civil remedy. At the same time, it is equally well recognized that the law of limitation ordinarily bars the remedy and does not extinguish the underlying right, unless the statute expressly provides otherwise.

Concept of Islamic Jurisprudence

18.Considering the command of Allah Almighty as ordained in the Quran, Surah Al-Baqarah, obligation has been placed upon a

father for provision of clothing and other requirements of life to maintain the child, including maintaining the mother. The obligation set forth in the Quran is to be considered obligatory ( )واجبwhich has been defined in a concept that if a divine communication absolutely demands the performance of an act, it is called ()ایجاب. As for the act itself, it is called ()واجب. The lawgiver, i.e. Allah Almighty absolutely demands the performance of this act which is also called ( )واجب. In Islamic jurisprudence, an act whose performer is rewarded for its performance and its neglector is punished for its omission and similarly an act whose performer is praised and whose neglector is blamed in certain aspects, gives rise to the concept of ()واجب. A person who performs ( واجبobligatory acts) deserves praise and one who omits it without valid reason deserves blame and punishment. Considering this jurisprudence of Islamic law based upon the Quranic injunction, the father is under obligation to perform all such acts and there is no exception to it. Therefore, the father has to maintain the minor in all respects. As such, the law does not give any other concept of timeline unless the minor becomes an adult and is capable of taking care of himself. Before that, the father has to perform all such acts. Considering these aspects, this Court has also attended the provision of Article 120 of the Limitation Act which deals with the scenario where no period of limitation is provided elsewhere in the Schedule then a six-year timeline is to be seen when the right to sue accrues, and this timeline negates the concept of the obligation imposed by the Quran on the father without any time period. In this regard, this Court has also been guided with the principle settled in 1991 SCMR 2063 (Maqbool Ahmed v. Government of Pakistan), in which the Shariat Appellate Bench of the Supreme Court has adjudicated the mandate of Section 28 of the Limitation Act, 1908 and declared the same as un-Islamic. In this discussion, the concept of substantive and procedural law has also

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been explained. Relevant extract of His Lordship Justice Maulana Muhammad Taqi Usmani explains these aspects as:-

تا ہم مختلف آراء کے نتیجے میں اتنی بات مسلم نظر اتی ہے کہ حقوق پیدا کرنا ( کا کام ہوتاSubstantive law) قانون ضابطہ کا کام نہیں ہے بلکہ قانون اصلی ہے جبکہ ان حقوق کو عدالت کے ذریعے ثابت اور نافذ کرانے کا طریق کار مقرر ( کا کام ہے باالفاظ دیگر حقوق کا وجودProcedural law) کرنا قانون ضابطہ میں آنا اور باقی رہنا قانون اصلی سے معلوم ہوتا ہے اور عدالت کے ذریعے اس .کا ثابت ہونا قانون ضابطہ کے ذریعے ہوتا ہے

لہذا اگر ایک حق کے بارے میں یہ بات طے ہو کہ وہ کسی قانون اصلی ( کے ذریعے وجود میں آ چکا ہے اور مسئلہ صرف اسےSubstantive law) ( یقیناLimitation)عدالت میں ثابت کرنے کا ہو تو اس صورت میں معیاد سماعت (کا مسئلہ ہوگا لیکن اگر کسی حق کے وجودProcedure) ضابطے ( رہی کے لیے کوئی مدتContinuance)(میں آنے یا باقی رہنےExistence) ناگزیر ہو تو جو قانون اس مدت کا تعین کرے وہ ضابطے کا قانون نہیں بلکہ . ( قانون ہےSubstantive) اصلی

Considering the above principle, the elimination of the right of a child to claim past maintenance is considered to be under the concept of substantive law, and the same is not a procedural aspect. When this procedural and substantive definition is seen through the prism of Islamic law, then it reflects that the right of a child for past maintenance stands extinguished and he is not allowed to re-claim past maintenance beyond six years, whereas the father is under a continuing legal obligation ( )واجب under Islamic law to maintain the minor from birth till the age of majority in a manner as afforded by the father based upon the concept of Surah Al-Talaq, where a man of wealth spends

according to his means and is not put to any harm in this regard, therefore, considering the jurisprudence, it appears that the limitation provided in Article 120, if applied to the personal right of a child reflects that this Article is oppressive, harmful, and unjust, which is against the mandate of Islam and the right of the child could not be taken away in this manner. Besides the above referred concept in Islamic law, it is also settled that legislation in Islam is based upon public welfare (Maslaha). The legal maxim in this respect is that the ruling of the ruler over his subjects is based on their welfare. The principle defines the limit within which rulers can exercise their powers by formulating laws to maintain justice and protect the rights of the people. In this regard, guidance has also been taken from the Quranic injunction in Surah Al-Ma’idah, where it has been ordained: “For every one of you, We have ordained a divine law and an open road.” The divine law outlines the area within which the life of a Muslim may develop. Considering all these aspects of Islamic jurisprudence and the principles, it has surfaced on record through this discussion that the substantive right of a child could not be taken away, revoked, cancelled, withdrawn, or abandoned in terms of Article 120 beyond a period of six years. As a child is in a position of disability, he cannot claim his own rights, which are dependent upon a next friend or a mother in this case. Therefore, any adverse interest, if agreed by a major caregiver in the case of a child, is not allowed to perpetuate and eliminate the rights which have been ordained by Almighty Allah in the Quran.

19.However, the question involved in the present matter stands on a distinct legal and constitutional footing. The claim under consideration does not arise out of an ordinary commercial, contractual, or proprietary dispute; rather, it pertains to the

maintenance of a wife and a minor child, which, under Islamic jurisprudence, is not merely a civil liability but a continuing legal, moral, and religious obligation imposed upon the father by divine command. Such obligation is not created by contract, compromise, or mutual arrangement, but flows directly from the injunctions of the Qur'an and Sunnah, as already discussed in the preceding paragraphs. The jurists of Islamic law, particularly under the Hanafi school, have consistently held that once the Holy Qur’an imposes financial responsibility upon the father in matters connected with the upbringing and welfare of the child, the obligation to maintain the child himself stands established as a continuing and enforceable duty, which neither stands exhausted by lapse of time nor can be extinguished by private arrangement to the prejudice of the minor.

20.Likewise, Qur'an, Surah Al-Talaq (65:7), commands:

“Let the man of means spend according to his means, and he whose provision is restricted, let him spend from what Allah has given him...”

21.The aforesaid command does not prescribe any temporal limitation upon the obligation itself; rather, it regulates only the quantum of expenditure according to the financial capacity of the father. Thus, under the injunctions of Islam, maintenance is a continuing obligation which subsists so long as the legal dependency of the wife or minor child continues. The unpaid maintenance, in its true juristic character, partakes the nature of an enforceable debt against the father, which does not stand extinguished merely by lapse of time, particularly where the beneficiary is a minor suffering from legal disability and incapable of independently enforcing his vested right.

22.Therefore, while the general principles embodied in the Limitation Act, 1908 may govern ordinary civil claims, the application of Article 120 of the Limitation Act, 1908 to a claim of past maintenance involving a minor child or a wife during subsistence of marriage must be examined in harmony with the constitutional and Islamic framework governing the subject. A statutory interpretation which has the effect of defeating a divinely imposed and continuing obligation of maintenance, particularly to the prejudice of a minor, cannot be readily adopted in the absence of an express legislative mandate. The precedents cited by learned counsel were rendered in their own factual and legal context; however, the precise question from the perspective of the Islamic injunctions presently under consideration does not appear to have been directly examined therein.

23.Keeping in view the above discussion, this Court comes to the irresistible conclusion that Article 120 of the Limitation Act, 1908, is not attracted to a claim for past maintenance of a minor child, nor to the claim of a wife during the subsistence of marriage, and neither the minor nor the wife can be non-suited merely on the ground of lapse of time where the father has continuously failed to discharge his lawful obligation of maintenance, as per Quran and Sunnah.

24.This conclusion also finds support from the constitutional scheme. By virtue of Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973, Islam is the State religion, while Article 227 mandates that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah. Likewise, Article 31 enjoins the State to enable Muslims to order their lives in accordance with the fundamental principles and basic concepts of Islam. Any interpretation of a statutory provision which defeats an express and continuing obligation imposed by the

Holy Qur’an must, therefore, yield to an interpretation consistent with the constitutional command.

25.In view of what has been discussed above, the instant writ petition, being devoid of merit, is hereby dismissed. However, in order to safeguard and further strengthen the rights of minor children and wives in matters relating to recovery of past maintenance, particularly in the light of the injunctions of the Qur'an and Sunnah, and the constitutional mandate embodied in Articles 2, 31 and 227 of the Constitution of the Islamic Republic of Pakistan, 1973, this Court is of the considered view that the question relating to the applicability of Article 120 of the Limitation Act, 1908 in claims of past maintenance deserves legislative examination and reconsideration so as to ensure harmony of the statutory framework with the Islamic principles discussed hereinabove.

26.Accordingly, a copy of this judgment be transmitted to the Law and Justice Commission of Pakistan, as well as to the Ministry of Law and Justice, for such consideration, examination, and appropriate action as may be deemed proper under the law.

(Mohsin Akhtar Kayani) Judge Announced in open Court on:21.05.2026

Approved for reporting.

JUDGE

JahanZaib*