Maintenance of Special Needs Minor Child – Second Marriage Not a Ground to Reduce Father’s Liability.
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| Maintenance of minors |
خصوصی بچے کے نان و نفقہ میں کمی کا حکم کالعدم – اسلام آباد ہائیکورٹ کا اہم فیصلہ (2026 CLC 59)
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Must read judgement.
2026 CLC 59
[Islamabad]
Before Muhammad Azam Khan, J
HINA-Petitioner
Versus
ADIL SHAHZAD and others ---Respondents
Writ Petition No. 1436 of 2025, decided on 7th October, 2025.
(a) Family Courts Act (XXXV of 1964)--
-53.5, Sched. & 17-A(2)(a)-Suit for recovery of maintenance allowance by wife and minor children-Minor needing special care... Obligation of father to maintain minor children-Quantum of maintenance, determination of-Father contracting second marriage-Effect---Financial capacity of father, consideration of---Power of family court to fix an amount of maintenance higher than the amount prayed for in the plaint-Scope-Facts in brevity were that the petitioner/wife contracted marriage with respondent/husband and from the wedlock a son was born---During ring her pregnancy, the respondent/husband expelled the petitioner/wife from his house and failed to provide any financial support dur I support during pregnancy or after childbirth--The petitioner filed suit for rece for recovery of past and future maintenance for herself and the minor cl along with dowry articles and dower amount-The family court decreed partial maintenance ie. Rs. 20,000 per month for the petitioner till the iddat period and Rs.25,000 per month for the minor till an interim order, followed by Rs. 30,000 per month with annual increment, while dismissing her claim for dowry and delivery expenses-The appellate court later reduced the maintenance by Rs.10,000/-, leading the petitioner/wife to file the present writ petition-Held: When the quantum of maintenance was examined in the context of double-digit inflation, the rising cost of living, and the specialized quirements of an autistic child, it became manifest that the sum of Rs.10,000/- reduced by appe by the appellate court did not align with either the welfare of the minor or the established principles of law-Moreover, plea of father of having contracted second marriage and having more dependents to maintain was misconceived--Obligations arising from subsequent marriage could not operate to the detriment of children from an earlier marriage particularly where the child needed special care-Father could not absolve himself from his primary and continuous duty of maintaining such a child merely on the plea that he had additional dependents---Amount determined th ned by the appellate court was inadequate to meet even the most basic needs of a child, much less a special child requiring continuous medical and therapeutic attention-As and when the final order was passed was passed the amount fixed by the family court could be modified and revisited in that the quantum of maintenance could be increased or decreased after appraising, evaluating and examining the evidence produced during the trial--Thus, the mere fact that the interim maintenance was initially fixed at Rs.7000/-could not have constrained the Trial Court from enhancing the quantum of final maintenance to Rs.30,000/- due to peculiar needs of the minor who was a special child-Appellate court was directed to make a fresh determination of maintenance keeping in view the updated medical, special, educational and other living expenses of the minor-However, the assessment was to be made whilst considering the father's actual income and financial capacity which required determination through cogent evidence-Impugned order was set aside the extent of the quantum of maintenance fixed for the minor-Constitutional petition was partially allowed, in circumstances
Murad Khan v. Mst. Humaira Qayyum 2025 SCMR 739 rel
Syeda Farhat Jahan v. Syed Iqbal Hussain Rizvi and another 2010 YLR 3275; Dr. Muhammad Jawad Jan Arif v. Dr. Ayesha Chaudhry and 2 others 2022 CLC 89 and Syed Zain Muntazar Mehdi v. Mst. Sara Naqvi 2024 CLC 1580 ref.
(b) Family Courts Act (XXXV of 1964)--
-S.5, Sched. Maintenance allowance for minor children-Minor with special needs--Obligation of father to maintain his minor children-Scope-A father is not only under a legal obligation but it is also his moral and religious duty to maintain his children-This obligation is firmly rooted in the injunctions of the Holy Qur'an, which in Surah Al-Baqarah declares, "And clothing and maintenance must be borne by the father in a fair manner." IAl-Baqarah: 2331-The dictate of the Qur'an, therefore, places upon the father a continuous responsibility to provide sustenance, clothing, education, and medical care to his children in a just and equitable manner, commensurate with his means and starus--This duty becomes even more accentuated where the child requires special care-Any attempt to dilute or evade such responsibility would be contrary not only to the law of the land but also to the spirit of Shariah, which emphasizes compassion, fairness, and protection of the vulnerable-Father is under a legal and moral obligation to maintain his children-The concept of maintenance is not confined merely to food and shelter; rather, it encompasses all necessary expenses relating to education, clothing, medical treatment, transportation, and recreational activities, so as to enable the child to live a life of dignity consistent with the status of his father.
Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel..
(c) Family Courts Act (XXXV of 1964)---
Ss.5, Sched. & 17A(4)-Maintenance allowance for minor children-Minor requiring special needs-Obligation of father-Quantum of maintenance-Determination-Factors to considered-Scope-Quantum of maintenance requires due cor consideration of all factors on the basis of which the court can determine the actual need of the minor-In this his regard, it is important for or the court to first determine the expenses incurred or likely to be incurred on the minors-For this purpose pose the court must look into the living conditions of the minor and and the manner and means by which the mother is maintaining the minors which will include factors like where they reside, whether the mother is dependent upon her family, if so what is the income on the basis of which the minor is also being cared, whether she has a job and whether she has any source of independent income-Specia ecial needs of the minor which will relevant, as it is unique to the situation and individual-Yet for the purpose of maintenance it is the obligation of the father to fulfill include medical or physical needs or special educational needs should also be seen-Special needs will vary from case to case, if these special needs-In the case of enhancement, the court must also determine as to what extent the maintenance already fixed meets the requirement and expenses of the minor and for what purpose, further enhancement is required-At the same time the court must determine the income of the father either through proper documentary evidence or on the basis of the social status and earning documents such as his salary slips or any bank statement or property document on the basis of which he is able to show his monthly capacity of the father-In order to ensure that proper information is before the court, it may always require the father to produce income or earning or his financial status-In this regard, the assets owned by the father are relevant as it contributes towards establishing the financial status of the father that has to be probed into by the court and based on attending circumstances the court can conclusively establish the means through which the father will be able to maintain the minors-It is also important to take into consideration any liability of the father, that is whether he is paying any bank loan or debt, whether he has remarried or has other children or whether his parents are dependent on him-in this way the court can determine the manner in which the income of the father is spent and balance the income and capacity with the reasonable requirements of the minors seeking maintenance-In this regard, it is noted that S.17(A) of the Family Courts Act, 1964 specifically provides in subsection (4) that for the purposes of fixing maintenance, the court summon the relevant documentary evidence from any organization, body or authority to to determine the estate and resources of the defendant-The purpose of this provision is to facilitate the court to determine the financial position of the father-The court therefore is not dependent on documents or information provided by the father and can call for relevant documents or information he it from the relevant department or organization or as the case requires, in order to determine the income of the father.
Nazia Bibi and others v. Additional District Judge, Ferozewala and others PLID 2018 Lahore 916 ref.
(d) Family Courts Act (XXXV of 1964)--
-S.17-A(2)Ma)--Power of family court to fix an amount of maintenance higher than the e amount prayed for in the plaint-Scope Family court is empowered to fix an amount of maintenance higher than the amount prayed for in the plaint or higher than what was as interim maintenance, having regard to the afflux of time or other relevant circumstances.
Ms. Hajira Zakir Shah and Ms. Sana Liaqat for Petitioner,
Sardar Muhammad Nasir Khan along with the Respondent No. 1.