1. This single judgment shall decide the instant petition as well as Writ Petition No.15700 of 2014, as both these petitions are directed against the same orders and there is complete similarity and commonality of facts and law in both these petitions.
2. The petitioner namely Muhammad Ramzan is the grandfather of minors namely Ali Hamza and Amna Bibi, i.e. respondents No.1 & 2 whereas Muhammad Javed, who is petitioner in the connected petition is their father. The minors filed a suit for maintenance against their father before the learned Judge Family Court, Lahore which was consequently decreed ex-parte vide judgment dated 20th of November, 2012. The decree in the suit followed an execution petition. During the process of execution, Muhammad Javed (father) was arrested by the bailiff of the Court on 19th of September, 2013 and he was given show-cause notice for payment of 1/3rd of decretal amount out of total and surety bond to the extent of remaining decretal amount but on his failure, he was sent to civil prison. On 14th of March, 2014 second show-cause notice was issued to the judgment debtor and he was warned that in case of failure for payment of decretal amount, proceedings will be initiated as per law and the property belonging to his father will be attached. Ultimately on 02nd of April, 2014, the judgment debtor was sent back to civil prison till the satisfaction of the decree and the property belonging to the petitioner (grandfather) was ordered to be attached. The petitioner as well as judgment debtor filed two respective objection petitions against the said order, however, both were dismissed vide order dated 28th of April, 2014, hence these two petitions.
3. Mr. Rao M.I. Zafar Khan, Advocate representing the petitioners submitted that Muhammad Ramzan, being the grandfather was not a party in the suit, so the decree cannot be executed against him. He added that the provisions of Para 370 of Muhammadan Law have wrongly been invoked by the learned Judge Family Court. Learned counsel maintained that the learned Judge Family Court when once opted to launch the proceedings against the judgment-debtor under the provisions of The Land Revenue Act, 1967 then he cannot be kept in the civil prison more than thirty days as provided under Section 82 of the said Act. Learned counsel argued that in presence of execution proceedings against the actual judgment-debtor, no simultaneous proceedings can be initiated against the petitioner (grandfather).
4. Conversely, learned counsel for the respondents, while defending the impugned orders submitted that the proceedings were initiated in accordance with law and the grandfather is bound to satisfy the decree when his son has failed to discharge his liability. In order to strengthen his contentions, learned counsel referred Para 370 of The Muhammadan Law. Reliance has been placed on “Abdullah versus Jawaria Aslam and 2 others” (2004 YLR 616).
5. After having heard learned counsels for both the sides and perusing the record, I am of the view that matter in issue hinges upon three components which are as under:
i) Implication of Para 370 of Muhammadan Law by D.F. Mulla’s;
ii) Execution of a decree against a person, who is not a party in the suit; and
iii) Modes of Execution by Family Court.
Both the Courts below, while holding the petitioner, Muhammad Ramzan (grandfather) liable to pay the maintenance to minors have invoked Para 370 of Muhammadan Law. In order to properly evaluate the legality and validity of the judgments under challenge it is necessary to first examine the relevant provision. For the sake of convenience and reference Para 370 of principles of Muhammadan Law by D.F. Mulla’s is reproduced below:
“370. Maintenance of children and grandchildren.—(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S. 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”
From the bare perusal of principles embodied in Para 370 ibid it is crystal clear that primarily father is bound to maintain his children. In the case of son until he or they attain the age of puberty and if there are daughter or daughters till their marriage. In case the father is poor and incapable of earning by his own labour it is the mother, if she is in easy circumstances, to maintain her children. The liability of grandfather starts when the father is poor and infirm and the mother is also not in a position to provide maintenance to her children but the liability of grandfather to maintain his grandchildren, is also dependent upon the fact that he is in easy circumstances. Thus in my humble view if the father and mother are alive, the grandfather cannot be held responsible for maintenance of his grandchildren unless it is first determined that he is in easy circumstances. In order to determine that grandfather is in a position to maintain his grandchildren it is incumbent upon the Family Court to first adjudicate and determine this fact which cannot be done unless he is a party to the suit, having a fair opportunity to explain his status and position. The judgment cited by the learned counsel for the respondents runs on entirely different facts. In the said case, the suit was filed against the paternal grandfather and the same was contested by him, so principles enunciated in the said judgment are not applicable to the present case.
Further information regarding liability of grandfather and modes of decree execution by Family Court can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.