Maintenance

  1. Enhancement — due to non-operation of section 489 Cr.P.C. — whether remedy is available — Held: as the maintenance is a continuous process, the person entitled to be maintained has remedy and legal right to approach the Family Court for adequate, enhancement/alteration in the maintenance allowance. Abdul Khaliq      v. Sidra Khaliq & 3 others 2014 SCR 280 (H)
  2. Maintainability of fresh suit for enhancement of the maintenance allowance — once a decree by the Family Court in the suit for recovery of maintenance allowance is granted, thereafter, if any dispute regarding the rate for per month allowance arises then it is not necessary to file a fresh suit rather the same can be agitated through a miscellaneous application — held: the suit filed in this regard shall be treated as application. Ali Haider and 2 others v. Syed Muhammad Asghar Shah 2014 SCR 1004 (A) Abdul Khaliq v. Sidra Khaliq and others (Civil Appeal No.11/2013, decided on 31.5.2013 (2014 SCR 280) rel.
  3. Claim for maintenance after the age of majority — held: law does not debar minor children to claim the maintenance allowance even after attaining the age of majority. Ali Haider and 2 others v. Syed M. Asghar Shah 2014 SCR 1004 (B) PLD 1967 Dacca 575 and PLD 1970 SC 75 rel.
  4. Sections 272 and 278 of Muhammadan Law by Mullah — maintenance of wife — condition for grant of maintenance — question; if a wife voluntarily abandons the house of husband without any reason, whether she is entitled for maintenance charges or not — it is the basic duty of husband and he is bound to maintain his wife — section 272 provides that husband is bound to maintain his wife so long she is faithful to him and obeys reasonable orders, but husband is not bound to maintain a wife who refuses herself to him or otherwise disobeys — held: the refusal or disobedience is justified if dower is not paid or she is forced to live with her husband despite cruelty — under section 278, if a husband refuses to maintain his wife, she may sue for maintenance — it is the duty of a Muslim wife to perform her part of obligation. Further held: the husband may refuse to maintain his wife when she refuses to live with him — if a wife refuses to live in the house of her husband and not ready to perform her part of duty and denies to live with him as his wife, she is not entitled for maintenance. Further held: when wife successfully proves that she is forced to abandon the house of her husband then she is entitled for maintenance charges. Mst. Amreen v.    Muhammad Kabir 2014 SCR 504 (A) Shamim Akhter v. Arshad Mehmood (Civil Appeal No.57/2010 dated 21.2.2013), 2002 CLC1450, and 2012 SCR 284, rel.  
  5. Grant of — proposition whether a decree for restitution of conjugal rights is bar to claim maintenance by wife — the Court observed that there may be a case where wife is ousted by her husband from the house after mercilessly beating her and when she files a suit for maintenance charges, the husband also files a suit for restitution of conjugal rights only to defeat the suit for maintenance.  When wife proves that she was ousted from the house by husband then, held: a decree for restitution of conjugal rights is no bar in a suit for maintenance. Mst. Amreen v. Muhammad Kabir 2014 SCR 504 (C) PLD 1977 Lahore 90 distinguished.
  6. Maintenance of wife — grant of — held: it is the duty of the husband to maintain a wife till she is faithful to him and ready to live with him in his house and perform her part but if a wife abandons the residence of her husband voluntarily without any reason and is not ready to live with him as his wife then she is not entitled to past or future maintenance.  Further held: if a wife is ousted from the house by husband or she is forced to leave the house of her husband due to cruelty, physical or mental torture by the husband or other inmates of his family, she is entitled for maintenance charges. Mst. Amreen v. Muhammad Kabir 2014 SCR 504 (D)
  7. Maintenance of minors — grant of — father working abroad and is a resourceful person — held: the Court has power to grant maintenance charges keeping in view the financial position of the father and his economic resources. Mst. Amreen v. Muhammad Kabir 2014 SCR 504 (E) Shahpal  Anjum v. Mst. Samine Kousar (Civil Appeal No.64/2010 dated 20.2.2014) ref.
  8. The law is settled on the point that husband is duty bound to pay maintenance charges to the wife till she is faithful to the husband and lives with him — if she voluntarily leaves the house of her husband, she is not entitled to maintenance charges. Azhar Bashir v. Sadia Shafique 2015 SCR 521 (B) 2014 SCR 504 rel.
  9. Payments of — Under the injunctions of Islam, a person cannot be ordered to pay the maintenance charges beyond his capacity. Muhammad Zaheer- ud-Din Babar v. Mst. Shahzia Kousar & another 2015 SCR 621 (B) 2014 PSC 1136 & 2014 SCR 504 rel.
  10. Maintenance — Held: — if a woman voluntarily leaves the house of husband, she is not entitled to the maintenance charges but if the circumstances in the house of husband are of such nature that she cannot live in the house of husband, a respectable life and she leaves the house of husband then it is not a volunteer desertion, it is an ouster and the wife is entitled for maintenance charges. Nusrat Bibi v. Pervaiz Iqbal & another 2016 SCR 68 (A) 2014 SCR 504 rel.
  11. —payment and quantum of—financial capacity— maintenance charges cannot be ordered to be paid by a husband/father beyond his financial position— no one can be burdened to pay the maintenance beyond his capacity— Islam does not compel a person to do an act beyond his capacity— the social status, the level of legitimate financial sources which are eminent factors for deciding the quantum of maintenance, shall not be ignored. Safina Choudhry & another v. Zafar Iqbal 2017 SCR 1620 (B)   2014 SCR 504 & 2014 SCR 1136 rel.
  12. —for period of Iddat— Iddat is compulsory after dissolution of marriage of any character whether it is dissolved by death, divorce or khula, etc—so for grant ofmaintenance for the period of ‘Iddat’ is concerned, although, there are divergent opinions amongst the jurists representing the different schools of thoughts, however, the Courts have unanimously held that the divorcee wife is entitled to get the maintenance allowance during the period of ‘Iddat’. Safina Choudhry & another v. Zafar Iqbal 2017 SCR 1620 (D)
  13. — Marriage dissolved on the ground of non-maintenance— maintenance for period of Iddat— grant of— under a valid marriage, maintenance is the lawful right of the women— This right is derived from the authority of Qur’an, from the traditions of the Prophet and from consensus— the wife acquires the right of maintenance from husband, both during the subsistence of marriage and period of Iddat—Held: Shariat Court was not justified to hold that the wife was not entitled to get the maintenance from desertion, till the expiry of the period of ‘Iddat’. Safina Choudhry & another v. Zafar Iqbal 2017 SCR 1620 (E) تفسیرتوضیع القران،آسان ترجمہ قران، تشریحات کے ساتھ (ازمفتی تقی عثمانی)  تفسیر ضیاءالقران (ازپیرمحمد کرم شاہ الازہری)                      AIR 1985 SC 945, 2000 MLD Lah.1900, 1989 SCMR 119 & 1999 CLC Karachi 305 rel.
  14. —grant of—judgment/order—decree—financial capacity— according to the principle of law, in such like matters the financial condition of the judgment debter is also one of the considerations. Shahzad Rauf vs Mst. Shahbana Yaseen 2018 SCR 908 (C) 2015 SCR 621 & 2014 SCR 1004 Ref
  15. —financial position of husband— to be determined and awarded as such if alleged in specific manner in evidence— vague assertion that respondent had strong financial position—cannot be made yard stick to award Rs. 15,000/- per month as prayed—maintenance of Rs. 4,000/- as determined by the trial Court and maintained by the Shariat Appellate Bench of the High Court declared by the Supreme Court as rational— After going through the statements, reproduced above, it is amply clear that none of the witnesses told the exact figure of income of the respondent. Except these statements nothing is available on record to ascertain that the respondent has got the strong financial position. In such circumstances, as the appellant failed to bring on record the detail of her monthly expenditure and also failed to substantiate that the respondent is in position to pay the maintenance allowance at the rate of Rs. 15,000/- per month, therefore, the maintenance allowance determined/awarded by the trial Court, upheld by the High Court, i.e. Rs. 4,000/- per month appears to be rational. Saima Majeed vs Muhammad Shafique 2018 SCR 1086 (A)
  16. —award of—criterion—duties and obligations of spouses –husband is under the obligations to maintain wedded wife but at the same time, the “Holy Quran” and “Sunnah” has cast some duties and obligations upon the wife—Held: the duty of the husband to maintain his wife is conditional with performance of marital obligations—according to clear command of Allah, it is fundamental duty of the wife to guard the reputation, property of her husband in his absence and also her own virtue. Shahpal Anjum v. Mst. Samina Kousar  2019 SCR 226 (C) Surah Al.Nisa verse No. 34 rel
  17.  — the maintenance allowance should be according to the financial position of the husband. Shahpal Anjum v. Mst. Samina Kousar  2019 SCR 226 (D) Sura Al Talaq verse No. 7 rel
  18.  —maintenance—entitlement of wife—conditional—there are the number of sayings of the Holy Prophet (PBUH) which are of binding nature—there is also consensus of opinion amongst eminent Islamic Scholars that the right of maintenance of a wife is not unconditional rather it is conditional with discharging the obligations of the contract of marriage. Shahpal Anjum v. Mst. Samina Kousar  2019 SCR 226 (E)  2002 CLC 1450, PLD 1977 Lah. 90 & PLD 1998 Kar. 234 rel
  19. —Claim of maintenance by wife—conduct of wife—husband made all possible efforts to populate wife but she without any cogent and sufficient reason failed to perform the obligations on her part according to contract of marriage—when these elements are judged in the light of injunctions of ‘Quran’ and ‘Sunnah’ on the principle of law enunciated by the Superior Courts, it can be held that wife due to her conduct and failure on her part to perform the marital obligations, disentitled herself from the claim of maintenance allowance. Shahpal Anjum v. Mst. Samina Kousar  2019 SCR 226 (F & H)
  20. —award of— 20% annual increase in the awarded maintenance allowance which was neither prayed nor pleaded–Held: the award of maintenance allowance by the Court is neither fanciful nor arbitrary, however, the grant of 20% annual increase without claim is not proper. Irfan Ilyas & another v.Mst. Neelum & another 2019 SCR 644 (A)
  21.  —award of—where a wife has to left the home of her husband due to conduct of his parents then she is entitled to maintenance allowance. Zabeen Kousar  v. Abdul Waheed 2019 SCR  692 (A)
  22.  —Plaintiff/wife awarded maintenance allowance with 10% annual increase. Zabeen Kousar  v. Abdul Waheed 2019 SCR  692 (B)
  23. ۔۔۔تعین شرح۔۔۔شریعت کے اصولوں کے مطابق خاوند پر کفاف ماہانہ کا اتنا ہی بوجھ ڈالا جا سکتا ہے۔  جتنی وہ استطاعت رکھتا ہے۔ )  الف Umar Hayat v. Asia Bibi & others  2019 SCR 427
  24. — احکامات خدا وندی کے مطابق بھی بیوی اور بچوں کے کفاف کے حوالے سے کسی پر اُس کی اسطاعت سے زائد ذمہ داری اور بوجھ نہیں ڈالا جا سکتا۔(حوالہ سورۃ الطلاق آیت نمبر7 ) بUmar Hayat v. Asia Bibi & others 2019 SCR 427
  25. —Grant of—husband is duty bond to maintain wife— if a wife without a valid reason refuses to live in the house of her husband and not ready to perform her part of duty, then she is not entitled for maintenance allowance. Muhammad Mumtaz Versus Rifat Kousar & another 2021 SCR 217 (A) 2014 SCR 504 rel.
  26. — husband is duty bound to pay maintenance charges to wife when she is faithful to the husband and lives with him—if a wife voluntarily leaves the house of her husband, she is not entitled to the maintenance charges. Aliya Jabeen versus Muhammad Ashfaq & another 2021 SCR 292 (B) 2002 CLC 1450, 2014 SCR 504 & 2019 SCR 226 ref.
  27. — Muhammadan Law— section 277—it is the duty of the husband to maintain his wife—it is the obligation of husband to provide maintenance to her wife till she is faithful and obeying to her husband. Mehvish Kazmi versus Parvaiz Hussain & another 2021 SCR 609 (I) 2012 SCR 284 rel.
  28. —Maintenance is an obligation, which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances. Mehvish Kazmi versus Parvaiz Hussain & another 2021 SCR 609 ( K) 
  29. —Grant of— Except in certain conditions, if husband fails to maintain, the wife may seek dissolution of marriage— maintenance allowance is not ex-gratia grant rather a right of wife in consideration of performance of conjugal rights. Mohammad Ibrahim Ahmed Saeed Versus Nusrat Parveen & another 2021 SCR 735 (A) 2012 SCR 284 rel.
  30. —maintenance of wife and children—obligatory for husband/father under Islamic commands—only exception to avoid maintenance, if wife no more remain faithful and obedient to husband—in case of non-maintenance, wife may sue husband for maintenance—Held: it is sacrosanct duty to render financial support to wife and children even if the husband/ father is required to earn money with the physical labour, if he is able bodied. There is no escape route unless the Court of competent jurisdiction considers a wife or minor not entitled to get the maintenance from husband/father on any legally permissible ground. It cannot be denied at all that a husband is under legal, moral and religious obligation to maintain his legally wedded wife—Further held: if a husband refuses to maintain his wife, she may sue for maintenance. Muhammad Ishaq Naz & another vs Saima Abdul Rehman 2024 SCR 431(D) D.F.Mullah, Mohammadan Law, paras No. 272 & 278 ref.
  31. —payment of maintenance—duty of husband—wisdom behind mandatory payment of maintenance—surrender to husband by wife—-Held: when a woman surrenders herself into the custody of her husband, it is incumbent upon him to supply her with food, clothing and lodging, whether she be a Muslim or an infidel, because maintenance is a recompense for matrimonial restrain, whence it is that where a person is in the custody of another on account of any demand, or so forth, his subsistence is incumbent upon the other. The jurisprudence developed by Islam demonstrates that it is the duty of a Muslim wife to perform her part of obligation first for setting in with claim of maintenance. The husband may refuse to maintain his wife when she refuses to live with him and if a wife without any legal justification refuses to live in the house of her husband and is not ready to perform her part of duty and denies to live with him as his wife; she will not be entitled for maintenance. Muhammad Ishaq Naz & another vs Saima Abdul Rehman 2024 SCR 431(F)
  32. —maintenance—payment of—obligation of father— Command of the Holy Quran—in Islamic law, a father is under legal, moral and religious obligation to maintain his children till a certain age and it shall not be out of context to mention here that his such obligation originates from esteemed dictates of Holy Quran. [P.431] f —maintenance—father is bound to maintain child, even if child does not want to—Contention: the child does not want any maintenance allowance from the father—Held: point is completely absurd as it is the duty of the father to maintain his child and if the father does not perform his duty towards the child and in such case, the mother maintains the child, it is enjoined upon the father to pay back such maintenance amount which has been paid by the mother as he is responsible for that and not the mother except in exceptional cases. Muhammad Ishaq Naz & another vs Saima Abdul Rehman 2024 SCR 431(H)
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