Mst. Shazia Noreen & another Vs District Judge etc

Stereo HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

(JUDICIAL DEPARTMENT)

Writ Petition No.39297 of 2026

Mst. Shazia Naureen, etc.

Vs.

District Judge, etc.

Petitioners by: Mr. Khalid Pervaiz Warraich, Advocate.

Respondent No.3 by: Rai Muhammad Javaid Iqbal Kharal, Advocate.

Date of hearing: - 23.09.2026

JUDGMENT

MUHAMMAD USMAN GHANI RASHID CHEEMA, J.

When a child comes to interact with the judicial system, the response must be facilitative, cooperative and backed by child-right driven approach.1

2.The grievance of the Petitioners, particularly Petitioner No.2 through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, is that the learned Family Court, vide Judgment and Decree dated 24.01.2026, fixed her maintenance at a reduced rate of Rs.30,000/- per month per head, alongwith her younger brother, solely on the basis of consenting statement of their mother/guardian. Aggrieved thereof, an appeal was filed before the learned District Judge, Sargodha, which was dismissed vide Judgment and Decree dated 26.03.2026. Hence, this petition.

Arif Fareed v. Bibi Sara and others (2023 SCMR 413)

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3.Learned counsel for Petitioners contends that minor Petitioner’s maintenance was fixed at Rs.30,000/- per month solely on the statement of her mother/guardian. He maintains that the learned Family Court fell into error by accepting it as the exclusive criteria for the fixation of maintenance allowance without independently assessing the needs, welfare of the minors and financial capability and social status of the father. Minor Petitioner’s grievance before this Court is that in an earlier suit for maintenance decreed on 12.06.2012, maintenance was fixed at Rs.50,000/- per month per child along with 10% increase annually, yet the mother/guardian made this statement adverse to the minors’ interests without obtaining leave of the Court. Learned Appellate Court failed to appreciate these aspects of the case and upheld the Judgment and Decree passed by learned Family Court, perfunctorily, on the basis that the statement given by the Petitioner’s mother was voluntary in nature. Thus, the same be set aside.

4.Learned counsel for father/Respondent No.3 by supporting the findings of the Courts below submits that the matter was amicably settled by the warring parents through statements recorded on oath before the Court of competent jurisdiction, hence, be accepted as correct. To him, it was only logical for the Courts below to fix the amount of maintenance as agreed inter se the parents. As the Petitioner’s mother had voluntarily accepted the quantum of maintenance in an out of Court settlement and then testified on oath, therefore, she could not subsequently be allowed to resile from this arrangement. Her actions of approaching the learned Appellate Court as well as this Court amount to approbation and reprobation that cannot be allowed, therefore, the present writ petition be dismissed.

5.The contentions of learned counsel for the parties have been heard and the available record of the case has been perused with their able assistance.

6.At the outset, let this be noted that this writ petition has been brought by a minor, who is suing through her mother on account of her

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disability to approach this Court directly. The Hon’ble Supreme Court of Pakistan has held that the children are not the people of tomorrow; they are people today. They have a right to be taken seriously. 2 Therefore, this Court, after going through the pleadings, available record appended therewith and having considered the contentions of the parties, has narrowed down the basic questions for determination i.e. whether the parents or guardian of a minor can lawfully waive, surrender, relinquish, renounce or abandon child’s maintenance through private agreement, out of Court settlement, compromise or consenting statement in Court? Ancillary thereto is the question whether a Family Court is legally permitted to rely solely on a private agreement, out of Court settlement, compromise or consenting statement in Court, for determining the amount of maintenance without independently assessing the minor’s welfare, needs and the financial capability and social status of the father.

7.Perusal of Impugned Judgment and Decree dated 24.01.2026, passed by the learned Family Court, reveals that the matter was premised exclusively upon the statements of the parents of the minor. In fact, Petitioner’s mother had stated on oath to accept Rs.30,000/- per month per child maintenance and along therewith, she also abandoned her claims qua the recovery of delivery charges and dowry articles. It is clear as day that the learned Family Court, thereafter, fixed the future maintenance of the minors, and while doing so, the pivotal questions relating to the needs of the children, minor’s welfare and father’s financial capability and social status were not asked let alone addressed or dilated upon.

8.Minor is a person, who is under legal disability and is placed under special protection of the Courts. Jurisdiction that is to be exercised by this Court is in the nature of loco parentis and the Court has to be conscious so as to protect the rights of the minor. Under the law, maintenance of child is a continuing legal, moral and religious Dr. Muhammad Asif v. Dr. Sana Sattar and others (PLD 2026 Supreme Court 238)

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obligation of the father.3 Right of maintenance belongs to the minor and not to the parent or guardian. Rights of children, like any other legal person, are independent rights and cannot be treated as negotiable claims capable of being bartered or exchanged like the commodities even by the warring parents. Minor’s right to maintenance cannot be curtailed, compromised or surrendered by anyone else, may it be a guardian. A mother, like the present case, acts only as guardian, custodian or next friend but she does not become owner of such right. Therefore, she possesses no authority to waive, surrender, relinquish, renounce or abandon the right of maintenance vested in a minor. Any agreement, arrangement or settlement, even amongst the parents, purporting to waive, extinguish or diminish child’s right to maintenance is void and unenforceable against the minor. Likewise, any determination of maintenance solely on the ground that it is based on consent of the parents cannot be accepted by this Court while exercising its parental jurisdiction if it is not based upon the guiding principles given by the superior Courts from time to time.4

9.The Courts, especially Family Courts, have been created for betterment, welfare and protection of minor children, so they are under a bounden duty to independently determine whether the arrangements agreed upon by the parents actually serve the needs, welfare and interests of children involved, more particularly when there is compromise or settlement reached amongst the war-locked parents. While determining its validity, the Court should specifically record that the compromise so made is beneficial and is in the best interest of the minor involved. It cannot be emphasized enough that no compromise that restricts, extinguishes, diminishes, waives or adversely effects child’s right to maintenance, like the present case, is acceptable and when such an agreement is brought before the Court, it is under a duty to examine the same in the light of the over-arching doctrine of welfare and best interest of minors and then reach to some conclusion. Ipso- Muhammad Imran Baqir v. Mst. Zarnain Arzoo and others (PLD 2026 SC 170) and Humayun Hassan v. Arsalan Humayun (PLD 2013 SC 557) Muhammad Waleed Arshad v. District Judge, etc. (2026 LHC 3604)

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facto reliance on consent of the parent(s) is shrugging off responsibility and abdication of duty by the Family Court, cast upon it by the law, which cannot be countenanced. It needs to be reiterated that the rights and welfare of minor children cannot be made hostage to the unlawful conduct, dispute or defences of adults.5

10.Adverting to the facts of the case at hand, any arrangement made by guardian operating to the detriment of the minor is incapable of being enforced. Indeed, it is settled that in Family Court proceedings, the provisions of Code of Civil Procedure, 1908 do not apply, except Sections 10 and 11, as mandated by Section 17 of the West Pakistan Family Courts Act, 1964,6 however, the principles of CPC can lawfully be borrowed while conducting family cases, as the nature of proceedings is inevitably civil, so as to effectively protect the rights and interests of the minors.

11.Any arrangement, such as the one reached between parents in this case, requires leave of the Court in terms of Order XXXII CPC as no compromise or agreement can be entered into on behalf of the minor by the appointed guardian without the leave of the Court.7 Consequently, if such arrangement is entered into, without leave of the Court, same shall be void against the minor. If the learned Family Court was to record such arrangement, as the one given by the guardian in the present case that was prima facie detrimental to the interests of the minor, then the course provided in Order XXXII CPC should have been adopted. Likewise, when the amount of maintenance was to be fixed based thereon, an independent assessment as to the needs, interests and welfare of the minors as well as the financial capability and social status of the father had to be made, irrespective of and without being influenced by the consenting statement.8 Muhammad Shahzad v. Mst. Ayesha Noor and others (2026 SCMR 1401) Arif Fareed v. Bibi Sara and others (2023 SCMR 413) Muhammad Amjad Khan Afridi and others v. Shad Muhammad and others (PLD 2022 Supreme Court 27)

Muhammad Asim and others v. Mst. Samro Begum and others (PLD 2018 SC 819)

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12.Insofar as the contention of learned counsel for Respondent No.3 is concerned, which also weighed heavily with the fora below, that amount of child maintenance was premised upon the concurrence of the parents, suffice it to say that once a matter has reached to the Court then no compromise can be effected by a guardian qua the rights of minor, including right to maintenance, if it is detrimental to minor’s interests. Consenting statement by Petitioner’s mother, whereby the minor had been deprived of her right of maintenance from her father, was plainly illegal. Parents may agree between themselves but they cannot bargain away what belongs to their child. In matters of maintenance, the child’s welfare must speak louder than parental consent.

13.In view of the above, this writ petition is hereby allowed. Both the Judgments & Decrees passed by Courts below are set aside and the matter is remanded to the learned Family Court to decide the question of minors’ maintenance afresh keeping in view the needs, interest and welfare of the children involved and the financial capability and social status of their father in light of the principles of law laid down by the Superior Courts from time to time.

(Muhammad Usman Ghani Rashid Cheema) Judge Waqas*

Approved for Reporting

Judge