Maintenance of the Minor Child in Divorce Proceedings and Role of the Welfare State i.e Pakistan

Child Maintenance Allowance 
That the recent trend in our society is seeing a paradigm change in the matrimonial relationship. The number of divorce cases are raising, particularly in the last two decades, more and more middle and lower middle Class Couples having been approaching family courts for divorce resulting in rise of bitter child custody battles. Often the innocent child / children are being used as a tool to wreck vengeance by vindictive litigants who feel no hesitation to inflict severe financial, emotional and psychological abuse on the child thereby seriously affecting the child in his / her later part of life. With many other implications that a divorce has on the individual, family and society at large, children of divorced couples are the one who bear the brunt of the entire happening. It is a common practice among couples to use kids as pawns in the game of emotional chess. It amounts to absolutely irresponsible parenting to scar children emotionally post separation. In due course the parents move on in their lives and onto another partners but children carry the trauma of being manipulated and torn apart emotionally, all their lives. In my legal experience I have seen a large number of these kids suffering from personality problems, conduct, disorder, and substance abuse, criminal and anti social traits etc.

That scores of execution petitions for payment of maintenance for minor children are pending adjudication in almost each Guardian Court at Lahore and hundreds of such petitions are pending adjudication throughout the province of Punjab in guardian courts even for the last more than 5-7 years. The core reason in majority of such petitions is only one, and that is the Respondents/ Defendants in such petitions have defaulted to pay maintenance to the minor Child, on one ground or the other. In almost all such petitions, multiple warrants of arrest have also been issued to the Respondents but to no avail. 

 That the instant issue relates to the sorry state of affairs, wherein minor children, who were left in lurch by both his father and paternal relatives, have been fighting with their fathers for the past 5-7 years, claiming arrears of maintenance of Child due towards their fathers, in pursuance of the order passed in their favour in the maintenance of Minor Child proceedings in Guardianship and Family Jurisdiction, on the file of Multiple Guardian Courts at Lahore District, without getting a pie from them, till date. It is an issue which has not yet been addressed by any of the Courts of appropriate jurisdiction except that mere notices, summons and warrants of arrest has been issued one after the other. It is further pertinent to be noted here that the failure of the Guardian Courts at Lahore to ensure compliance of their Orders has resulted in gross miscarriage of justice to not only the destitute ladies but also to the minor children, who are left alone to bear the brunt of the lax laws as well as the failure on the part of the Guardian Courts to ensure compliance of their orders thereof.

That  Our family Courts are expected to act in quasi parental jurisdiction as a Locus Parentis, deal with the delicate matters touching the rights of the people , particularly the destitute ladies and the needy minors and instead of dealing with their such rights in a mechanical manner. There is a need to adopt a new line of action to start with the creation of a society, which is dreamed of as a social welfare State. By mere issuance of notices, and warrants of arrest and their failure to effect the same serves no useful purpose to the destitute ladies in litigation nor the needy minors rather their miseries are enhanced. This sorry state of affairs needs to be addressed by this Honourable Court.

That The worst possible thing that can happen in a child's life, apart from losing a parent, is to become a rolling ball in a parents' divorce and ensuing custody battles. Whilst the spouses and their families hurl accusations, impose financial restraints by defaulting payment of alimony to the minors and try to get the better of each other, the trauma being suffered by the child may sometimes be overshadowed by the volley of hurt and anger of the parties. 

                 That it is pertinent to be noted here that the default committed by the fathers to pay the Child maintenance allow in as much as the incapacity of the Guardian/ Family Courts to effect their orders passed in execution proceedings are directly adding misery to the lives of the innocent children who are the direct sufferers of the said default. In the event of such default the minors are left with no option but either to beg or to get employment in order to meet their day to day expenses.

               That in the peculiar circumstances of the instant matters it is the responsibility of the State; multiple government institutions have been created to rescue the destitute ladies and the needy children. We have a social contract under the name of the Constitution which was enacted and given to the people of Pakistan through their chosen representatives in the National Assembly. Needless to mention here that a child born in Pakistan is a subject matter of the Constitution of Pakistan and State is responsible to provide all what has been guaranteed under the Constitution of Pakistan to him.

               That under the provisions of Art.35 of the Constitution of Islamic Republic of Pakistan, 1973, it was ordained that the State would protect the marriage, the family, the mother and the child. Intention and object of the framers of the Constitution, while inserting Art.35 was to protect the child from all types of hostile forces, including non payment of maintenance to the minor child, so that it was ensured that he was brought up in a conducive and favourable social environments; and more particularly to become a viable citizen with honour and grace.

        That Judiciary being the essential constitutional organ of the State, it was required to place meaningful interpretation on the said provision of the Constitution, so that the liberty and dignity of the child was preserved and was fully guaranteed and his due share of maintenance be paid to him.

      That  in Pakistan we have no enacted law , providing any mechanism for the deprived minors to get maintenance in case if their father or grandfather as the case may be opts not to pay their maintenance.

                      That it is pertinent to be noted here that the liability of father or grand father to maintain his children or grand children in absence or in case of inability of their real father to maintain them, has been dealt with at different times. In the case of (Haji Nizam Khan Vs Additional District Judge, Layallpur & Others (PLD 1976 Lahore 930), this concept has been dealt with in detail along with the liability of the State with regard to the Principles of Policy enunciated in the Constitution that this Court in the reported citation was of the view that the judiciary though cannot direct organs, authorities and persons included in definition of State under Article 7 to act according to the Principles of Policy, yet Superior Judiciary is not barred either to set down a rule for itself to follow Principles of Policy or to declare it for subordinate judiciary to act in accordance with the said Principles. It was also settled in the said citation that there is no bar on the Superior Judiciary to declare a law in accordance with the said Principles of Policy. It is a mandate contained in Article 31(1) of the Constitution to take steps to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam. Hence, any organ of the State can be directed by an order of the Court to observe the Principles of Policy in their respective spheres of working.

               That the State by feeling its responsibility both at the Federal and Provincial Level, has constituted the institutions for social welfare and Bait ul Maal is one of such institutions  and Punjab has taken the lead through Punjab Bait ul Maal Act VII of 1991, which was promulgated on 30^th March 1991. The basic principle of said legislation was to provide for the establishment of charitable funds and by virtue of Section 5 of the said Act, the utilization of the Bait ul Maal has been provided, which includes the relief and rehabilitation of the Poor and the Needy, particularly poor widows and orphans, educational assistance to the poor and deserving students and other purposes also. There are District Bait ul Maal Committees in view of section 7(3) of the said Act working at all district levels.

         That In addition to the above legislation there is also a Zakat & Ushr Ordinance (XVIII) , 1980 , which provides the manner of collection of such funds and utilization thereof includes the assistance to the needy particularly the orphans and the widows by virtue of Section 8 thereof, which is reproduced herein below:

“ 8. Utilization of Zakat Funds

The moneys in Zakat Fund shall be utilized for the following purposes, namely,

(a)   assistance to the needy , the indigent and the poor particularly orphans and widows, the handicapped and the disabled , eligible to receive Zakat under Shariah for their subsistence or rehabilitation, either directly or indirectly through Deeni Madaris, or educational, vocational or social  Institutions and other institutions providing health care.

       That it is further reiterated here with respect that in the case of (Abdul Majeed Vs. Additional District Judge, Faisalabad & 4 others PLD 2012 Lahore 445) , it was observed that the system of Zakat can be linked up with the Family courts to the extent that if the Family Court is of the view that the persons liable to pay maintenance of minor child are poor and those who should have received maintenance also fall under the clause of eligible persons entitled to receive Zakat Funds , than the suitable directions to Zakat & Ushr Council be also issued.

      That it was further observed by this Honourable Court, in the citation narrated above that the Family Courts in the Province, if reached to the conclusion that the father or the grand father , as the case may be , are themselves not in the position to afford in easy circumstances to maintain their dependants , after an inquiry as provided in the CPC for pauperism , to direct the plaintiff’s before the said courts to implead the State as a Respondent in the pending lis and then to direct the relevant organs or authority of the state , including Bait ul Maal and the Local Governments to regularly pay the determined maintenance of the minors. Needless to mention here that when the right of the minors or ladies seeking maintenance has been determined by a court of law, there will be no further need to verify their such claims by the organ or authority , which would be directed to pay the maintenance to such needy people.

         That the point of law has been decided in essence and the benefits of the said Judgment of this Honourable Court are required to be extended in favour of all those cases of maintenance where in the fathers or the grandfathers have deserted to pay the maintenance to their minor children effecting badly the welfare of the minor children.

IT is therefore  suggested that the Government of Pakistan, through its Bait ul Maal, should to allocate a special fund for the payment of maintenance allowance to the minor children where from a maintenance allowance could be regularly paid to the needy minors in case of boys up till their age of majority and to the girls till they are married as the case may be, if directed by the concerned Family Court in this respect. 

District & Sessions Judge, Lahore should prepare a report regarding the pendency of execution petitions of maintenance in District Lahore, wherein the maintenance allowance has not been paid to the minors since the institution of the said petitions.

Punjab Bait ul Maal, Lahore can register the names of such destitute children as being effected minors with their Community Welfare Department as regular beneficiaries from District Bait ul Maal.