Daily Times

Recent times have witnessed a paradigm shift in matrimonial relationships with an increase in divorce rates, often resulting from common factors such as domestic violence, substance abuse, desertion or simply an irretrievable breakdown of relations.

When children are born from such marriage, more often than not, it is inevitable that, given the intense environment coupled with a battle of egos, families and rights, the matter of child custody and other intricacies finds its fate before a court of law.

When it comes to deciding the maintenance of a child which is to be arranged by the father, the applicable laws in Pakistan leave much to be desired. The first lacuna: prevailing laws do not define ‘maintenance’. Alternatively, our courts place reliance on the Arabic word for maintenance which is ‘Naqafah’ perceived to be ‘an amount spent by a person on his family’. As per Muslim scholars, maintenance may include anything essential to lead a life including food, clothing and residence. This definition is in no manner exhaustive and may vary according to each unique case and circumstance.

If we are to consider the Islamic position, the Holy Quran dictates that it is not only a religious but also the legal and moral obligation of a father, in fulfilling his role as the natural guardian, to maintain his child/children, irrespective of their residence, till they attain the age of majority or in some cases until the daughter is married. In certain Islamic schools of thought, this comes with certain exceptions, however, in Hanafi belief, if the father is capable of earning, it is adequate to impose upon him the unconditional obligation of maintaining his offspring.

Poverty and weak financial standing cannot absolve the father from his undisputed duty to pay.

Accordingly, under Pakistani law, the Muslim Family Law Ordinance of 1961 and the Family Courts Act of 1964 clearly and unequivocally place the onus of the maintenance of a child on the father. On delay or failure to fulfil such absolute duty, there is appropriate legal redressal available in section 17 of the Family Courts Act for filing of a suit for maintenance wherein, interestingly, on the very first date of appearance by the defendant’s father, initial/interim maintenance is fixed by the court, payable by the fourteenth day of each month.

This fixing of interim maintenance which holds field until final adjudication of the suit whereby the final amount of maintenance shall be awarded, is problematic. I believe this is so because, on the one hand, case law has categorically laid down that maintenance is an absolute right of the child, irrespective of whether custody at the time is with the father or mother.

Moreover, the Hon’ble Lahore High Court has gone further to observe (‘Syed Zia ul Hassan Gilani vs Mian Khadim Hussain’ at PLD 2001 Lahore 188) that poverty and weak financial standing cannot absolve the father from his undisputed duty to pay. However, on the other hand, the routine fixing of interim maintenance at a whimsical amount, for an indefinite period, on the first date, that too without justification or deliberation into the unique facts surrounding the respective parties and the subject matter at hand only begs the question: how might such unsubstantiated interim maintenance amount be deemed appropriate and fitting to the father’s ability to pay, the needs of the child and other exceptional circumstances of each brief and involved party?

As a practising lawyer, this question has been posed by many aggrieved single mothers who are left with no choice but to arrange and worry for their child’s financial security, given the negligible amounts ordered time and time again by courts as interim maintenance.

Typically, there is a tendency for courts to overlook the financial standing of the father and hence his ability to pay by passing a stereotypical order across the board which remains insufficient on a practical level to fulfil its intended purpose: that is, to maintain.

This is despite the authority of a judge under the law to summon relevant documentary evidence to ascertain the estate and resources of a husband (in case of maintenance owed to wife)/father who is saddled with the responsibility of providing maintenance allowance.

This expedient measure allows the court to make an informed decision regarding adequate, practical and appropriate interim as well as final maintenance, one that will efficaciously and effectively meet the ends of justice.

Justice Muhammad Shan Gul (as he then was) in his powerful judgment (reported at 2023 YLR 2007) very aptly recorded that amendments to the Act were brought about to ‘arrest the nearly unbridled discretion vesting in a Judge Family court in the matter of fixation of quantum of maintenance’ and referred to the power of the Judge to summon additional information and/or documentation (section 17-A(4)) as a ‘safety valve’ to ensure there is no arbitrary, whimsical or subjective exercise of discretion.

The objective of the creation of Family Courts and amendment to the laws is not only to curb the mischief of delaying tactics by the parties but the expeditious disposal of cases bearing in mind the agony caused to the parties, particularly the wife and children with an intent to minimize the same.

It is therefore imperative that courts demand and deep dive into the financial resources of the father vis-a-vis indicators such as social status, ability to pay by way of salary, payslips, possessions, ownership, estate, tax statements, etc. to establish the true position and thereafter, pass enlightened and apt orders that are congruous and in harmony with the father’s status and accordingly, the child’s subsequent upbringing.

Although the position of the apex courts is clear to the extent of the non-negotiable non-disputed rule to pay, there is yet to be a fixed yardstick or guidelines to measure the amount of maintenance. The scheme of arrangements is forever evolving.

Only a few years ago, the Hon’ble Supreme Court rightfully upheld (PLD 2018 SC 819) that in case of such non-disclosure by the father of his true standing, an adverse inference can be drawn against him, therefore reiterating that unmistakably, the burden of providing for the child vests, without exception or doubt, with the father in strict unison with his monetary resources.

Going forward, it is humbly prayed that despite the growing number of suits for maintenance filed before the learned Family Courts, there be a necessary incumbent shift from an assembly-line style of judgments to granting equitable relief to aggrieved mothers and children on a case-to-case basis.

The writer is a Lawyer based in Lahore & runs a nonprofit technical training institute (www.kakti.pk). She can be reached at zoe.khanramdays.com