Daily Times

In our culture, a lot of emphasis is placed on having children. Barely a couple of months pass before inquisitive relatives start asking whether any ‘good news’ is expected; not only this, they go even further and equate any bout of food poisoning with the so-called good news!

When a couple does have a child, more often than not, it is still a happier occasion if the firstborn is a boy. Even when it is a less happy one and a girl comes instead, it is firmly hoped that the next will be a boy. After all, we might have lost all our princely estates and might have been reduced to living on rented premises, but still there is a bloodline to be carried on! But, was not our prophet’s bloodline carried on by his daughter’s children?

Anyway, life does not work out that smoothly for everyone. Sometimes, and that is often now, marriages fall apart, for one reason or another, ranging from physical abuse, drug addiction, finances, in-laws, affairs, to simply not having any children or for having no male child.

Most of the time, the children are thrown out with the wife or she opts to take them with her when she leaves. It is amazing that the man, in order to hurt the woman, forgets that he is a father too and how unfair it is to make his children suffer for even the basic necessities of life.

The law, fortunately, provides that the father be obligated to maintain his children, regardless of where and with whom they reside. In Pakistan, it is referred to as ‘maintenance’ and elsewhere it is termed ‘child support’. It is a firm principle of Islamic law that a father be bound to maintain his children, sons until they attain the age of majority and daughters until they are married and their responsibility shifts to their husbands. In the absence of the father or on his inability to maintain his children, the paternal grandfather becomes liable for maintenance, including the past, present and future maintenance, of his grandchildren.

In view of the delays in cases being finally decided, the legislature, in order to reduce the suffering and hardships faced by the plaintiffs, amended the law in 2009 and put an express provision with regards to ‘interim maintenance’ for children in place. The law now clearly stipulates that whenever a suit for maintenance is filed by the children, as soon as the written statement is filed by the father, the family court is under a statutory duty to fix the interim maintenance for the child or children, as the case may be. The law reads:

“17-A. Interim order for maintenance:

The Family Court,

a) in a suit for maintenance of children, shall immediately, after filing of the written statement, pass interim order for maintenance, and

b) in any other suit for maintenance, may at any stage of the proceedings, pass an interim order for maintenance, where under the payment shall be made by the fourteenth of each month in advance, failing which the court shall strike off the defence and decree the suit.”

It is apparent from the language “shall immediately”, that fixing interim maintenance is obligatory on the family court and is not discretionary. Non-payment of this money is not a joke either and again the word ‘shall’ imposes a mandatory action in which the father/defendant loses his right to defend and the suit is supposed to be decreed.

Unfortunately, despite such express provisions and powers, the family courts are reluctant to strike off the defence. The law provides that a family suit has to be decided within six months but the courts persistently give long adjournments. Any objection raised to this effect and the learned judges point to their cause lists as an excuse. Whilst I am cognisant of the fact that there is a huge caseload and I do appreciate their inability to give shorter dates, I am also privy to the fact that unnecessary adjournments are granted, which, instead of reducing the caseload, only serve to prolong each case, sometimes for years, in spite of the national judicial policy.

Another problem is the amount of maintenance granted. The general rule is that whatever income the plaintiff is able to establish, the maintenance granted, will be in accordance with that. Now, I fail to understand that when it is common knowledge that the income earned by a person is not properly documented and neither are the properties or taxes given, why should their offspring be left to suffer for that? Should a general rule of prudence to grant a mandatory minimum in all cases, belonging to a particular category or class not be put in place? It is not only ironic but also downright painful to see Rs 500 or for that matter Rs 1000 per month being granted as maintenance, still. This amount does not even qualify to be called a joke.

The same fathers, who were once doting, now do everything conceivable to wriggle out of providing for their family, be it because of the wife or the ex-wife, or just because they are simply lowly, mean and downright selfish persons, who have no problem bringing ‘lives’ into the world yet have all the excuses in it, not to maintain them. These people have no problem with paying for litigation; they even dish out money to bribe the process servers and court staff to suppress notices and the like, and would rather die than give money to their children.

The term maintenance includes food, clothing, shelter, utilities, education, medical coverage and the like, so do the learned judges figure Rs 500 per month as adequate maintenance, in any social class? Maintenance is an absolute right guaranteed by the law and religion; it is not charity and should not be given like one.

The amount of maintenance that is required or which should be granted has to be in accordance with the status of the parties. If the father is jet-setting across the world and yet the maintenance granted to his children barely covers educational expenses, or if the father lives in an air-conditioned environment and the children have to do with a mere fan in the blazing heat, or if the father drives a land cruiser and the children travel in public transport, or if the father avails the best private medical facilities available and the children suffer in queues for free government sponsored treatment, can this be called ‘just’ and ‘equitable’? Can this fulfil the criteria of justice having been done and having been seen to be done?

It is time we fulfilled our legal and moral obligations. It is time we learned to distinguish between charity and maintenance. It is time we accept that our children are our responsibility. It is time we remember and provide for our offspring, in the manner we would have, had they lived under our roofs. It is time we remember what a ‘father’ stands for, ideally for his children, forsaking all others. But most of all, it is time the learned judges remember what justice is even when the father forgets to.

The writer is an advocate of the high court