Muhammad Waleed Arshad Vs District Judge etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

(JUDICIAL DEPARTMENT)

Case No. Writ Petition No.54280 of 2022

Muhammad Waleed Arshad Versus District Judge, etc. Sr.No.of order/ Date of Order with signatures of Judge, and that of Proceedings order/ parties or counsel, where necessary. Proceedings

03.06.2026 Mr. Shahid Mehmood Khan Khilji, Advocate for the petitioner.

Learned counsel for the petitioner contends that petitioner has assailed the judgments and decree dated 26.07.2022 & 19.05.2022 passed by the learned Courts below with regard to the maintenance as well as the delivery expenses of the minor. He further added that at present, parties have amicably settled the matter and in this regard photocopy of agreement/compromise deed between the parties has been placed on record ‘Mark-A’ which was executed before the learned executing court therefore, on the instructions of his client, he intends to withdraw this writ petition.

2.However, perusal of the terms and conditions of the compromise reflects that the respondent Beenish Rasheed executed the terms that she will not claim any future maintenance on behalf of minor and even the minor daughter will not claim any inheritance from Muhammad Waleed Arshad, the petitioner, father. The terms are as under:

فریق اول نو مولود بچی کو اپنے پاس ہی رکھے گی اور اس کی بیماری خوراک تعلیم ضروریات زندگی پوری کرنے کے لیے فریق دوئم سے کبھی بھی کسی قسم کا کوئی مطالبہ یا تقاضہ ہرگز نہ کرے گی اور نہ ہی نومولود بچی فریق دوئم کی وراثت میں حصہ دار ہوگی اور نہ ہی ڈلیوری اخراجات کا/فریق اول اپنے سابقہ موجودہ خرچہ نان و نفقہ

تقاضا فریق دوئم سے کرے گی اور نہ ہی فریق دوئم ادائیگی کرنے کا پابند ہوگا اس کے عوض فریق دوئم نو مولود کی حضانت کے لیے کسی بھی قسم کی کوئی قانونی چارہ جوئی نہ کرے گا اگر کرے گا تو وہ کالعدم وغیر موثر ہوگا

3.Considering the above terms agreed between the parties, it appears that the minor has been deprived of his future rights of maintenance as well as inheritance from the estate of his father. Therefore, the principal question requiring determination is whether the parent of a minor child, either by private contract or by a compromise recorded before a family court, can validly surrender or extinguish the minor's future right of maintenance and inheritance. The answer, in the opinion of this Court, must be negative. A minor is a person under legal disability; the law, therefore, places such child under special protection of the courts. The welfare of the minor is not merely one consideration amongst many; it is the paramount consideration. The rights of a child are independent rights and cannot be treated as negotiable claims capable of being bartered away by parents for the purposes of settlement of their personal disputes. Under Islamic law, the maintenance of a minor child is a continuing legal, moral, and religious obligation of the father. The rights of maintenance belong to the child and not to the mother. The mother may act as a guardian, custodian, or next friend in pursuing such claim, but she does not become the owner of the right. Consequently, she possesses no lawful authority to permanently waive, surrender, or extinguish the future right of maintenance vested in the minor. Likewise, the purported relinquishment of the future right of maintenance is wholly ineffective in law.

4.Under Muslim law, inheritance opens only upon the death of the propositus. No heir acquires a vested right during the lifetime of the owner of the estate.

A mere expectancy cannot be transferred, relinquished, or surrendered in advance. The mandatory rules of succession prescribed by Islamic law cannot be defeated by private arrangement between parents. The impugned stipulations are also inconsistent with the constitutional framework. Articles 9, 14, 25(3), and 35 of the Constitution obligate the State and its institutions to protect the dignity, welfare, and interest of children.

5.Articles 2-A and 227 further require that laws and legal proceedings remain consistent with the injunctions of Islam. Any agreement seeking to permanently deprive a child of maintenance or inheritance rights runs contrary to these constitutional guarantees. The family court was not acting as a mere recording agency. Whenever a compromise affects the rights of a minor, the Court assumes protective jurisdiction. The Court is under a duty to independently examine the legality, fairness, and welfare implications of the proposed settlement. Judicial approval cannot transform an unlawful stipulation into a lawful one. Consent of parents cannot validate an arrangement which is otherwise contrary to law, public policy, or the welfare of the child.

6.In view of the above reasons, this Court comes to an irresistible conclusion that some directions are required to be followed/circulated amongst the learned civil courts, family judges, guardian courts, as well as appellate courts for the purposes of future guidance while receiving any compromise document executed between rival parties, especially the parents in a family court with regard to the minor's rights.

(i)The custody arrangement, if otherwise beneficial to the minor may stand.

(ii)Any clause purporting to waive or extinguish the future rights of maintenance of minor is void and un- enforceable.

(iii)Any clause purporting to surrender, relinquish or extinguish the future inheritance rights of minor is void ab-initio and without legal fact.

(iv)Such clauses shall not operate as a bar against any future claim instituted by or on behalf of minor.

7.In addition to the above, the family court shall also consider the following guidelines as a practice direction in the trial:

(a)No compromise affecting a minor shall be accepted solely on the basis of consent of parents.

(b)Before recording any settlement concerning a minor, the Court shall independently determine whether the arrangement serves the welfare and best interest of the child.

(c)The Court shall record specific reasons demonstrating that the compromise is beneficial to the minor.

(d)No compromise shall be accepted which permanently waives, restricts, or extinguishes the future right of maintenance of a minor child.

(e)No compromise shall be accepted whereby a parent, guardian, or custodian purports to surrender or relinquish the future inheritance right of a minor.

(f)Whenever a compromise concerns the substantive right of a child, the Court shall expressly examine its consistency with the Constitution, the Family Courts Act, the Guardians and Wards Act, principles of Muslim personal law, and the welfare doctrine governing minors.

(g)Any clause found detrimental to the welfare of the child shall be excluded from the compromise and shall not form part of any decree or order.

8.Dismissed as withdrawn.

(Mohsin Akhtar Kayani) Judge

Approved for reporting.

Judge

Jahanzaib*