اسلامی قانون میں دستبرداری (عاق) کا کوئی تصور نہیں ہے۔ والدین اپنی اولاد کو انکے قول و فعل سے تو عاق کر سکتے ہیں مگر وراثت سے محروم نہیں کر سکتے۔ لینی وراثت کا حق والدین بھی ختم نہیں کر سکتے۔
P L D 2013 Lahore 464
(a) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance of daughter including educational expenses---Claim of past maintenance---Maintenance---Definition---Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter---Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses---Validity---Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of hisor her own property---Definition of "maintenance" was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means tosupport life---Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married---Even on attainingthe age of majority, the father was responsible for daughter's maintenance---Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination---Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter, therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time---No interference was called for in the impugned orders---Constitutional petition was dismissed, in circumstances.
Mukhtarul Hassan Siddiqui v. Judge Family Court, Rawalpindi and 4 others 1994 CLC 1216; Abdul Rauf and others v. Mrs. Shereen Hassan PLD 2001 SC 31; Muhammad Nawaz v. Mst. Khurshid Begum and others PLD 1972 SC 302; Mst. Anar Mamana and another v. Misal Gul and 2 others PLD 2005 Pesh. 194; Farkhanda Mumtaz v. Muhammad Sharif and 2 others PLD 2006 Pesh. 96; Mst. Farah Naz v. Judge Family Court, Sahiwal PLD 2006 SC 457; Rasheed Ahmad v. Mst. Shamshad Begum and 3 others PLD 2007 CLC 656; Arbab Mir Muhammad v. Mst. Iram Iltimas PLD 2005 SC 24 and Muhammad Asad v. Mst. Humera Naz and others 2000 CLC 1725ref.
Chap. XIX of Muhammadan Law by D.F.Mulla'; Abdul Rauf v. Mrs. Shereen Hassan PLD 2001 SC 31; Mian Muhammad Sabir v. Mst. Uzma Parveen and 2 others PLD 2012 Lah. 154 and Arbab Mir Muhammad v. Mst. Iram Iltimas PLD 2005 SC 24rel.
(b) Islamic law---
----"Maintenance"---Definition---Maintenance included food, raiment and lodging.
Chap. XIX of Muhammadan Law by D.F.Mulla's; rel.
(c) Islamic law---
----Inheritance---Under Islamic law, there was no institution of abandonment (aaq) for a disgruntled son/daughter depriving him/her from his/her inheritance.
(d) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5, Sched.---Limitation Act (IX of 1908), Art.120---Claim of past maintenance---Limitation---Claim of past maintenance was governed by Art.120 of the Limitation Act, 1908 which described a period of six years from the date when the right to sue accrued, and time during which the father/husband remained away from Pakistan would be excluded for reckoning the period of limitation---Claim of past maintenance subject to the limitation was permissible in relevant circumstances.
Mst. Farah Naz v. Judge Family Court Sahiwal PLD 2006 SC 457; Rasheed Ahmad v. Mst. Shamshad Begum and 3 others 2007 CLC 656 and Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302rel.
Ch. Muhammad Waris Khan along with Petitioner.
Abid Hussian Abid along with Respondents.
GAKHAR HUSSAIN VS Mst. SURAYYA BEGUM
P L D 2013 Lahore 464
Before Ali Baqar Najafi, J
GAKHAR HUSSAIN---Petitioner
Versus
Mst. SURAYYA BEGUM and others---Respondents
Writ Petition No.2232 of 2012, decided on 10/12/2012.
ORDER
ALI BAQAR NAJAFI, J.---Through this writ petition, the petitionerchallengestwoordersdated9-7-2012passedby respondentNo. 3andthatofdated8-2-2012passedbyrespondent No.4.
2.Brief facts giving rise to filing of this writ petition are that respondent No.1 on 28-10-1981. Respondent No.2 was born from their wedlock on 2-9-1983. The petitioner is foreign nationality holder and his earning exceeds Rs.1-1/2 lac per month. He expelled the respondents in the year 1987 and married one Saadia Bibi who was his third wife. The respondents claim maintenance to the tune of Rs.25,000 each besides other expenses including educational expenses of respondent No.2.
Conversely, the petitioner filed written statement on 29-6-2011 through his attorney controverting the claim of the respondents on the ground of limitation, estoppel, concealment of facts and that respondent No.2 his daughter is disobedient as she refused to marry with his nephew proposed by him. Hence this writ petition.
3.Learned counsel for the petitioner submits that the impugned judgments and decrees are against law and facts; that respondent No.2 is an educated lady and is of earning hand and has been a school teacher whereas the petitioner is an ailing and sick old man depends upon his children and is at the mercy of the State in U.K.; that the grant of past maintenance for six years is not only harsh, excessive but also is illegal; that according to the Injunctions of Islam the children who were earning financially are bound to feed their sick parents to get the blessing of Allah Almighty; that respondent No.2 is earning her livelihood and asset of society, but unfortunately she is acting as a tool in the hands of his ex-wife who is exploiting his daughter/respondent No.2. He gave reference to the statement of respondent No.2 frustrating his claim but no proof either documentary or oral was produced by respondent No.2 which could determine financial status of the father. Further submits that in section 369 of the Mohammedan Law by D.F. Mulla's, Food, Raiment and lodging are defined for maintenance, as such the expenses for education are not covered. Places reliance on Mukhtarul Hassan Siddiqui v. Judge Family Court, Rawalpindi and 4 others (1994 CLC 1216 (Lahore) in support of his argument that a disobedient daughter is not entitled to recover the maintenance; that the disobedient respondent being major should in fact support the petitioner; that the maintenance for period of six years is not sustainable in the eyes of law.
4.Conversely, learned counsel for the respondents submits that the petitioner has married three ladies and is feeding and maintaining the children from other wives but respondent No.2 was not only discriminated but also ignored totally; that she with a great difficulty could sustain and set up at the level of M.A. (English Literature); that a disobedient daughter, even assume for a moment without conceding, is also entitled to the maintenance by the father; that respondent No.2 is also entitled to maintenance by the father; that the petitioner has abandoned the said respondent, however, since he divorced her mother and did not even bother to know as to whether they were surviving or dead. Places reliance on Article 120 of the Limitation Act 1908; Abdul Rauf and others v. Mrs. Shereen Hassan (PLD 2001 Supreme Court 31), Muhammad Nawaz v. Mst. Khurshid Begum and others (PLD 1972 Supreme Court 302), Mst. Anar Mamana and another v. Misal Gul and 2 others (PLD 2005 Peshawar 194), Farkhanda Mumtaz v. Muhammad Sharif and 2 others (PLD 2006 Peshawar 96) Mst. Farah Naz v. Judge Family Court, Sahiwal (PLD 2006 Supreme Court 457); Rasheed Ahmad v. Mst. Shamshad Begum and 3 others (2007 CLC 656); Arbab Mir Muhammad v. Mst. Iram Iltimas (PLD 2005 Supreme Court 24) and Muhammad Asad v. Mst. Humera Naz and others (2000 CLC 1725 (Lahore), to argue that the respondent is legally entitled to the maintenance until she gets married or her custody is changed through process of law, which the petitioner has been avoiding.
5.I have heard the learned counsel for the parties and perused the record.
6.Under Chapter XIX of the Muhammadan Law by D.F. Mulla's, the authentic codified text (through a personal opinion) so far available, the maintenance as defined in section 369 includes food, raiment and lodging. Under section 370 a father is bound to maintain his daughter until she is married and the father is not bound to maintain a child which is capable of being maintained out of his or her own property. The definition of maintenance is to be liberally interpreted which includes the process of maintaining or being maintained and the provisions of the means to support life as held in Abdul Rauf v. Mrs. Shereen Hassan (PLD 2001 Supreme Court 31). The claim for past maintenance is governed by Art. 120 of the Limitation Act which describes a period of six years from the date when the right to sue is accrued. The time during which the petitioner remained away from Pakistan would be excluded for reckoning the period of limitation as held in Mst. Farah Naz v. Judge Family Court, Sahiwal (PLD 2006 Supreme Court 457). The said respondent is also entitled to past maintenance, six years prior to institution of the suit as already said that Article 120 of the Limitation Act is applicable to the suit for maintenance. Reliance can be placed on Rasheed Ahmad v. Mst. Shamshad Begum and 3 others (2007 CLC 656) and also Muhammad Nawaz v. Mst. Khurshid Begum and 3 others (PLD 1972 Supreme Court 302) wherein the past maintenance subject to limitation was held to be permissible in relevant circumstances of the case. Even in the recent judgment given by learned single bench of this Court in case Mian Muhammad Sabir v. Mst. Uzma Parveen and 2 others (PLD 2012 Lahore 154) it was held that father is bound to maintain even a divorced daughter if she is living with her mother instead of the father. Hence by now it can be safely said that a daughter is entitled to receive the maintenance regardless of her age till such time she is married. Even on her attaining age of majority the father is responsible for her maintenance as she would lead an independent life and is always in need of protection of her parents. In the instant case the mother of respondent No.2 could not provide her maintenance due to limited resources. The father is admittedly living at U.K. and notwithstanding his means of subsistence he has been providing enough maintenance to the other children from his other wives and as such he treated respondent No.2 with discrimination. Reliance can be placed on Arbab Mir Muhammad v. Mst. Iram Iltimas (PLD 2005 Supreme Court 24).
7.The contention of the petitioner that disobedient daughter is not entitled to maintenance has no force for the reasons; firstly, the father was unable to show his love, affection or even intimacy for thedaughter and, therefore, cannot expect her to return, precisely when no instance was mentioned showing disobedience; secondly, that even since he divorced his wife (mother) respondent No.1 he never turned up or saw the face of his daughter; thirdly, under Islamic Law there is no institution of abandonment (Aaq) for a disgruntled son/daughter depriving him/her from the inheritance and, therefore, a daughter cannot be deprived of her right of maintenance by the father during his life time. Even otherwise, the concurrent finding of facts cannot be interfered as the learned counsel for the petitioner could not point out any illegality, misreading or non-reading of evidence to substantiate that the petitioner had no resources to maintain his only ignored daughter ever since his birth.
8.For the foregoing reasons this writ petition being without any force, is hereby dismissed.
KMZ/G-1/LPetition dismissed.
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