Maintenance allowance for breast feeding. Doodh pilane ke ewaz kharcha wasool karna.
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| Maintenance for breast feeding |
1۔ بریسٹ فیڈنگ (دودھ پلانے) کے بدلے مینٹیننس کا قانونی و شرعی اصول
اسلامی شریعت اور پاکستانی عدالتی نظائر کے مطابق اگر کوئی خاتون اپنے نابالغ بچے کو دودھ پلا رہی ہو تو وہ بچے کے والد سے مینٹیننس/معاوضہ لینے کی حقدار ہوتی ہے، خواہ نکاح برقرار ہو یا طلاق واقع ہو چکی ہو۔
2۔ نافرمان خاتون اور ازدواجی مینٹیننس
(ا) اگر کوئی خاتون بغیر کسی شرعی یا قانونی وجہ کے شوہر سے علیحدگی اختیار کرے اور ازدواجی ذمہ داریاں ادا نہ کرے تو وہ عام حالات میں شوہر سے ذاتی مینٹیننس کی حقدار نہیں ہوتی۔
(ب) اسلامی فقہ کے مطابق نافرمانی (نشوز) کی صورت میں بیوی کا حقِ نفقہ ختم ہو جاتا ہے۔
(ج) تاہم یہ اصول بچے کے دودھ پلانے کے معاوضے پر لاگو نہیں ہوتا۔
3۔ بچے کو دودھ پلانے کے بدلے ماں کا حق
(ا) اگرچہ نافرمان خاتون ذاتی مینٹیننس کی حق دار نہیں،
(ب) لیکن اگر وہ اپنے نابالغ بچے کو دودھ پلا رہی ہو تو
(ج) وہ بچے کے والد سے دیکھ بھال الاؤنس / معاوضہ (Maintenance Allowance) لینے کی مکمل حقدار ہوتی ہے۔
4۔ قرآنی بنیاد – سورۃ البقرہ آیت 233
قرآنِ پاک میں سورۃ البقرہ آیت نمبر 233 میں واضح طور پر فرمایا گیا ہے:
(ا) باپ پر لازم ہے کہ وہ دودھ پلانے والی خاتون کے اخراجات ادا کرے۔
(ب) یہ ذمہ داری بچے کے حق اور اس کی پرورش کے تناظر میں عائد ہوتی ہے۔
(ج) اس آیت کی روشنی میں شریعت نے باپ کو پابند کیا ہے کہ وہ دودھ پلانے کے دوران ماں کو مناسب معاوضہ دے۔
5۔ عرب معاشرتی روایت اور فقہی اصول
(ا) قدیم عرب معاشروں میں بچوں کو دودھ پلانے کے لیے خواتین کے سپرد کیا جاتا تھا۔
(ب) ان خواتین کو دودھ پلانے کے عوض اجرت یا معاوضہ دیا جاتا تھا۔
(ج) یہی روایت بعد ازاں اسلامی قانون کا حصہ بنی اور فقہی اصول کی صورت اختیار کر گئی۔
6۔ طلاق کے بعد بھی دودھ پلانے کی اجازت
(ا) اسلامی قانون کے مطابق اگر خاتون کے پاس دودھ پیتا بچہ ہو تو
(ب) وہ طلاق کے بعد بھی سابق شوہر کے گھر میں رہ سکتی ہے
(ج) بشرطیکہ یہ رہائش اللہ تعالیٰ کی مقرر کردہ حدود کے اندر ہو اور مقصد صرف بچے کی پرورش ہو۔
7۔ دودھ پلانے کی مدت (Breast Feeding Period)
(ا) فقہِ اسلامی کے مطابق دودھ پلانے کی زیادہ سے زیادہ مدت
ڈھائی (2½) سال مقرر ھے۔
(ب) اس مدت کے دوران بچے کے والد پر لازم ہے کہ وہ
(ج) دودھ پلانے والی خاتون کو مناسب مینٹیننس ادا کرے۔
8۔ عدالتی غفلت اور قانونی خامی
(ا) زیرِ نظر مقدمے میں ماتحت عدالتوں نے
(ب) خاتون کے اس حق کو نظر انداز کیا
(ج) جو اسے بچے کو دودھ پلانے کے بدلے حاصل تھا۔
9۔ لاہور ہائیکورٹ کا واضح اصول
لاہور ہائیکورٹ نے قرار دیا کہ:
(ا) اگرچہ نافرمان خاتون ازدواجی مینٹیننس کی حق دار نہیں،
(ب) لیکن دودھ پلانے کے عمل کے بدلے وہ بچے کے والد سے
(ج) مینٹیننس/معاوضہ لینے کی مکمل حق دار ہے۔
10۔ اہم عدالتی حوالہ جات
(ا) محمد اسلم بنام محمد عثمان و دیگر
📌 2004 CLC 473
(ب) Khan Muhammad Vs. Addl. District Judge
📌 Writ Petition No.15906 of 2016
📌 فیصلہ لاہور ہائیکورٹ، مورخہ 22.03.2022
11۔ حتمی فیصلہ
(ا) اپیلیٹ کورٹ کا فیصلہ کالعدم قرار دیا گیا۔
(ب) ٹرائل کورٹ کا فیصلہ بحال رکھا گیا۔
(ج) ترمیم کے ساتھ یہ قرار دیا گیا کہ خاتون
اپنی عدت کے علاوہ
ڈھائی سال تک
بچے کو دودھ پلانے کے بدلے
Rs.2500/- ماہانہ مینٹیننس کی حقدار ہوگی۔
⚖️ نتیجہ
یہ فیصلہ اس اصول کو مستحکم کرتا ہے کہ:
ماں کا دودھ پلانا ایک فطری، شرعی اور قانونی خدمت ہے،
جس کا مالی بوجھ بچے کے والد پر عائد ہوتا ہے،
چاہے نکاح باقی ہو یا ختم ہو چکا ہو۔
Following case law is about maintenance of mother if she feeding her child after divorce or before divorce she is entitled to take maintenance from father.
Any woman feed her child is entitled to take maintenance allowance from father, reference is taken from Quran e pak Surah Baqra, in Islam as in old arabs pay to women who feeding to children in their early ages.
۔۔
Judgment of Lahore High Court.
Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.15906 of 2016
Khan Muhammad VERSUS Addl. District Judge etc.
JUDGMENT
Date of Hearing:
22.03.2022
Petitioner by:
M/s Ghulam Awais Ahmad Siddiqui & Miss Ifnan Ubeer
Rai, Advocates
Respondents-3-4 by:
M/s Mian Muhammad Rauf & Muhammad Imtiaz-urRehman Gujar, Advocates
SAFDAR SALEEM SHAHID, J. – The instant petition
under Article 199 of the Constitution of the Islamic Republic of
Pakistan, 1973, calls into question the legality of the judgments and
decrees dated 05.07.2011 and 24.11.2011 passed by the learned
Judge Family Court and learned Addl. District Judge, Faisalabad.
2.
Brief facts necessary for decision of the instant petition are
that on 16.06.2010 respondents No.3 and 4 filed a suit for recovery
of maintenance allowance and dower amount, alleging therein that
respondent No.3 was married with the petitioner on 01.11.2002;
that after some time relations between the parties became strained
and more than six years ago the petitioner ousted respondent No.3
from his house; that thereafter out of their wedlock respondent No.4
was born through major operation, but the petitioner despite
information did not visit; that income of the petitioner being a
police constable and a businessman was more than Rs.50,000/-, as
such it was prayed that a decree for recovery of gold ornaments
weighing three tolas as Haq Mehr, as fixed at the time of Nikah,
and for the past as well as future maintenance allowance at the rate
of Rs.6000/- per month for each of the respondents be passed. The
petitioner contested the suit by filing written statement and raised
certain preliminary objections.
3.
The learned trial Court, out of divergent pleadings framed
issues, recorded evidence of the parties and after having gone
through the same, while dismissing the suit to the extent of dower
amount, partially decreed the suit in the terms of that respondent
W.P.No.15906/2016
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No.4 was held entitled to recover Rs.2500/- per month as
maintenance allowance from January 2010 till her marriage with
15% annual increase, whereas maintenance allowance of
respondent No.3 was fixed as Rs.5000/- for the period of Iddat,
through judgment and decree dated 05.07.2011. Feeling aggrieved
both the parties filed appeals and the learned Additional District
Judge, while dismissing the appeal of the petitioner, allowed the
appeal filed by respondents No.3 and 4 in the terms that both of
them were held entitled to recover maintenance allowance at the
rate of Rs.2500/- per month from the date of institution of suit and
also granted decree for recovery of three tolas gold ornaments as
Haq Mehr.
4.
Arguments heard. Record perused.
5.
Respondent No.3 in her plaint claimed that she was ousted
by the petitioner from his house six and a half years prior to the
institution of the suit whereas the petitioner in his written statement
claimed that since the time of marriage as settled between the
parties, respondent No.3 was living in the house of her parents in a
separate room, but in December 2009 behavior of respondent No.3
was changed and she demanded for divorce, as such he divorced
her on 04.01.2010, hence she was not entitled to any maintenance
allowance. It was the case of the petitioner that since he issued
notice of Talaq on 04.01.2010, the same became effective with the
efflux of time i.e. after lapse of 90 days as contemplated in Section
7 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961). For
convenience, the afore-noted provision is reproduced as under:-
“7. Talaq:- (1) Any man who wishes to divorce his wife
shall, as soon as may be after the pronouncement of talaq
in any form whatsoever, give the Chairman a notice in
writing of his having done so, and shall supply a copy
thereof to the wife.
(2) Whoever, contravenes the provisions of subsection
(1) shall be punishable with simple imprisonment for a
term which may extend to one year, or with fine which
may extend to five thousand rupees, or with both.
W.P.No.15906/2016
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(3) Save as provided in subsection (5) talaq, unless
revoked earlier, expressly or otherwise, shall not be
effective until the expiration of ninety days from the day
on which notice under subsection (1) is delivered to the
Chairman.
(4) Within thirty days of the receipt of notice under
Subsection (1), the Chairman shall constitute an
Arbitration Council for the purpose of bringing about
conciliation between the parties, and the Arbitration
Council shall take all steps necessary to bring about such
reconciliation.
(5) If the wife be pregnant at the time talaq is
pronounced, talaq shall not be effective until the period
mentioned in Subsection (3) or the pregnancy, whichever
later, ends.
(6) Nothing shall debar a wife whose marriage has been
terminated by talaq effective under this section from
remarrying the same husband, without an intervening
marriage with a third person, unless such termination is
for the third time so effective.
Under Section 7 of the above-noted Ordinance, a person who
wishes to divorce his wife shall, as soon as may be, after the
pronouncement of Talaq in any form, whatsoever, give a notice in
writing of his having done so to the Chairman of the Union
Council/Town Committee in which the wife in relation to whom
Talaq had been pronounced was residing that stage of time.
Simultaneously, a copy of divorce notice, shall be transmitted to the
wife. After the receipt of the notice by the Chairman he is obligated
to constitute an Arbitration Council consisting of representatives of
the parties for effecting reconciliation, if any, between the parties.
Unless, a notice as required by Section 7 of the Ordinance is given
to the Chairman, mechanism for bringing about the reconciliation
between the parties is not set in motion, nor does the divorce
become effective. Obviously, there are two equally important
requirements first, notice of divorce must be given to the Chairman,
second, a copy of notice must be supplied to the wife. However,
Subsection (3) of Section 7 states that Talaq pronounced unless
revoked earlier expressly or otherwise does not become effective
until the expiry of the period of 90 days; from the day on which the
W.P.No.15906/2016
4
notice of Talaq is delivered to the Chairman, period of ninety days
starts from the day notice is received. This period is available to the
parties to reconsider and retrace their steps, if they are so minded.
Legal effects of non-supply of a divorce notice to the wife are not
provided in express terms in Section 7 of the Ordinance qua the
effectiveness of divorce.
6.
In view of the above, the divorce, notwithstanding the
conduct or attitude of any of the parties, shall become effective
after the expiry of ninety days unless the same is revoked earlier. In
the event, the parties appear before the Chairman and an Arbitration
Council is constituted, but reconciliation does not succeed, the only
thing the Council or the Chairman may do, is to record in writing
that reconciliation has failed. There is no other function, which a
Chairman or an Arbitration Council is competent to perform in this
behalf. If reconciliation does not succeed or the husband does not
revoke Talaq before expiry of ninety days, it becomes
automatically operative and effective. There is no provision either
in the Ordinance or the Rules requiring the Chairman or the
Arbitration Council to give a decision or to issue a certificate to
make the divorce effective. If the Chairman issued the certificate, it
was not under any provision of law and had no legal effect.
7.
In para No.310 of “Principles of Mohamedan Law” by D.F.
Mullas, it is provided as under:-
“A talak may be effected (1) orally (by spoken words) or
(2) by written document called a Talaknama”.
In sub-para (3) of para 311 of said book, it is provided as follows:-
“Talak-ul-bidaat or talak-i-badai, consists of:
(i) Three pronouncements made during a single tuhr either
in one sentence, e.g., “I divorce thee thrice--- or in
separate sentence e.g., “I divorce thee, I divorce thee, I
divorce thee” (x) or,
(ii)a single pronouncement made during a tuhr clearly
indicating an intention irrevocably to dissolve the
marriage (y), e.g., “I divorce thee irrevocably.”
In sub-para No.3 of para No.312, of said book which is as under:-
P.No.15906/2016
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“A talak in the badai mode becomes irrevocable
immediately it is pronounced, irrespective of the iddat.
As the talak becomes irrevocable at once, it is called
talak-i-badai, that is, irrevocable talak.”
In view of above referred paras, it is crystal clear that even oral
divorce given thrice becomes irrevocable and become effective the
moment same was pronounced. In the instant case, the petitioner
claimed to have pronounced divorce thrice through notice dated
04.01.2010, therefore, in view of the above referred provisions
when the same was not proved to have been revoked before the
expiry of 90 days, it had become effective. In this regard, reliance
can be placed upon M. Zikria Khan vs. Aftab Ali Khan and another
(PLD 1985 Lahore 319), Mst. Naveeda Kausar and others vs.
Mauzzam Khan and others (2016 CLC 180) and Major (R) Abrar
Hussain vs. Judge Family Court, Lahore and others (2016 MLD
218).
8.
Even otherwise, respondent No.3 neither anywhere in her
plaint claimed that she was ready to rehabilitate with the petitioner
nor in her evidence made any such offer in order to prove her claim
that she was still his legally wedded wife. Such right to
maintenance, as per the Islamic Law, however, is subject to the
obedience of the wife (first to Allah) and then to her husband. The
jurists have not reached consensus as to the accepted legal
definition, interpretation and application of “disobedience”.
Generally it is accepted that when a wife leaves the home without
consent or lawful excuse may amount to disobedience.
Non Hanafi schools have argued that a healthy wife who denies her
bed to her husband is disobedient and therefore loses her right to
maintenance. In this situation, the learned appellate Court has erred
in holding that respondent No.3 was still legally wedded wife of the
petitioner and as such was entitled to receive maintenance
allowance.
9.
However, if on the one hand a disobedient lady living
separate from her husband without any reason should not be paid
6
maintenance allowance for the period she had not performed her
matrimonial obligations, but on the other hand in lieu of her
breastfeeding to the minor during the said period, she was entitled
to receive maintenance allowance/compensation from father of the
child. Reference in this regard is made to Verse 233 of Surah AlBaqara in the Holy Quran, whereby the father has been bound
down to provide maintenance allowance to the lady who was
breastfeeding his child. As per „Sharia‟ the father is duty bound to
maintain his wife who was feeding his child. This principle is
established from the traditions of Arabic societies where the
children were handed over to the ladies (foster mothers) for feeding
and they were paid penny/reward for feeding purpose. It is also a
principle that even after separation, the lady can live in the house of
her ex-husband for the purpose of feeding in case she had a
suckling baby, within the limits prescribed by Almighty Allah.
Under the Islamic Rules, the feeding period has been fixed by the
Fiqa as 2 ½ years. The learned Courts below, however, did not keep
in mind entitlement of the lady for the maintenance allowance for
the period she had been feeding the minor and maintaining the
suckling baby of the petitioner. In this regard, reliance can also be
placed upon the case of Muhammad Aslam vs. Muhammad Usman
and others (2004 C L C 473).
9.
As regards the quantum of maintenance awarded to the
minor respondent No.4, the learned trial Court keeping in view the
evidence brought on record by the parties regarding financial status
of the petitioner as well as the necessities of the minor, had rightly
concluded that she was entitled to recover maintenance allowance
at the rate of Rs.2500/- per month. In addition thereto, the learned
trial Court had calculated the period of entitlement of the minor
taking in view the admission made by the petitioner in his written
statement that respondent No.3, who was already living in the
house of her parents, had changed her behavior and demanded
Talaq in January, 2010 and had rightly granted maintenance from
January 2010 till her legal entitlement with 15% annual increase.
W.P.No.15906/2016
7
10. The other claim of respondent No.3 was for grant of Haq
Mehr in the shape of gold ornaments weighing three tolas, as
mentioned in column No.16 of the Nikah Nama, which was alleged
to have not been given to her. Column No.16 is regarding delivery
or agreement for delivery of any property in lieu of Haq Mehr or
any part thereof. The said column has been filled in with the words
which clearly reveals that ,(زیور طالئی 3 تولے بحق بیوی کر دیا گیا ہے)
the said gold ornaments had been delivered to respondent No.3 at
the time of marriage. The only oral evidence brought on record by
respondent No.3 to prove that the said gold ornaments were not
delivered or that the same were taken back after delivery, was not
sufficient to negate the document, admitted by both the parties.
When documentary evidence is contradictory to the oral evidence
no reliance can be placed on the oral testimony and that it is wellestablished rule of appreciation of evidence that a person can tell a
lie but documents do not so. In this situation, the learned trial Court
rightly concluded that respondent N.3 was not entitled to recover
dower in the shape of gold ornaments weighing three tolas, but the
learned appellate Court erred in holding otherwise.
11. For what has been discussed above, the instant petition is
partly allowed, the judgment and decree passed by the learned
appellate Court is set aside while that of the trial Court is upheld,
however, with the modification that respondent No.3 shall also be
entitled to recover maintenance allowance at the rate of Rs.2500/-
per month for a period of 2½ years, in addition to the decree for
maintenance allowance of Rs.5000/- as already granted for her
Iddat period. There shall be no order as to costs.
(Safdar Saleem Shahid)
Judge
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