Mst. FARIDA BIBI vs JUDGE FAMILY COURT S — 2024 MLD 145 LAHORE-HIGH-COURT-LAHORE

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Mst. FARIDA BIBI VS JUDGE FAMILY COURT S. 5, Sched.---Civil Procedure Code (V of 1908), S. 151---Constitution of Pakistan, Art. 199---Maintenance allowance of minor, enhancement of---Constitutional petition---Maintainability---Mother invoked constitutional jurisdiction of the High Court to seek enhancement of maintenance allowance on the ground of daily growing requirements of minor---Held, that the Family Court had exclusive jurisdiction to pass an order on the application (under S. 151 of the Civil Procedure Code, 1908) for enhancement of the maintenance allowance even after the passing the final judgment and decree---Petitioner might move the application under S. 151 of the Civil Procedure Code, 1908, for enhancement of the minor before the Court of jurisdiction---Constitutional petition was disposed of accordingly. Citation Name: 2024 MLD 145 LAHORE-HIGH-COURT-LAHORE Mst. FARIDA BIBI VS JUDGE FAMILY COURT S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Rights of minor---Maintenance allowance of minor, waiving of---Scope---Agreement (Punchayat Nama) was entered into between the parties by which custody of minor girl was to be handed over to her mother on the condition that she (mother) would not demand the maintenance allowance of the minor girl---Said agreement/Punchayat Nama (document-in-question) was signed by the grandfather of minor girl---Held, that the rights of minor can not be waived by the mother or any of the blood relatives---Allah has specifically fixed the responsibility of maintaining the minor (suckling baby) to the father and the mother has been given responsibility of feeding the child---Where the father is not alive or not in a position to pay maintenance, then the responsibility will be shifted to mother if she can bear the same, or to the other family members (like grandfather) as given in S. 370 of the Muhammadan Law---Document-in-question would not disentitle the minor from her Shari right of maintenance allowance---High Court upheld the maintenance allowance to the minor having been rightly awarded to the minor by the Family Court---Constitutional petition was disposed of accordingly. Citation Name: 2024 MLD 145 LAHORE-HIGH-COURT-LAHORE Mst. FARIDA BIBI VS JUDGE FAMILY COURT S. 5, Sched.---Suit for recovery of maintenance allowance of the minor and mother/lady---Maintenance allowance for the period when wife is not living with the husband---Past maintenance allowance---Fostering period of the child---Scope---Family Court granted the maintenance allowance for the iddat period to the lady/plaintiff in wake of her divorce---Family Court though granted the maintenance allowance to the minor-girl (suckling baby) but denied the same to her mother/plaintiff (for fostering period) on the basis that she had left the house of her husband, not performing her matrimonial obligations---Held, that though a disobedient lady living separately without any reason should be refused payment of maintenance allowance for that period as she has not performed her matrimonial obligations, but the situation in the present case was different as the petitioner (plaintiff-lady) had been feeding the minor during such period, thus the respondent (father of the minor) was under obligation to provide the maintenance to her (petitioner) who was feeding his child---Welfare of the minor is supreme, even if the mother has left her husband's house herself or she is expelled from the house---As per Sharia the father is duty bound to maintain his wife who is feeding his child and maintenance allowance of such mother cannot be stopped in any way, however, after that period the Court can assess the evidence adduced by the parties and then appropriate order can be passed---Under the Islamic Law , the feeding period has been fixed by Fiqa as two and half (2-1/2) years, therefore, petitioner (plaintiff/mother) was also entitled for the past maintenance allowance from date of her desertion till the time of conclusion of feeding/fostering period of the minor (i.e. two and half years)---High Court modified impugned judgment and decree to the extent of grant of the past maintenance allowance to the petitioner (plaintiff/mother) for the said period at the rate the minor had been granted maintenance allowance---Constitutional petition was disposed off accordingly.

Mst. FARIDA BIBI vs JUDGE FAMILY COURT S — 2024 MLD 145 LAHORE-HIGH-COURT-LAHORE

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