Welfare Of The Minor And Responsibilities Of A Welfare State
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 the ensuing custody battles. Whilst the spouses and their families hurl accusations 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. The innocent child/ children are often being used as a tool to seek vengeance by vindictive litigants who feel no hesitation in inflicting severe emotional and psychological abuse on the child, thereby seriously affecting the child in his/ her development in the later part of life. Among many implications that a divorce has on the individual, family and society at large, the children of divorced couples are the ones who bear the brunt of the entire process. It is a common practice among couples to use kids as pawns in this game of emotional chess and it amounts to absolutely irresponsible parenting to scar children emotionally post separation. In due course the parents move on with their lives and onto other partners but the children carry the trauma of being manipulated and torn apart emotionally, throughout their lives. In my legal experience I have seen a large number of these kids suffering from personality disorders, substance abuse, criminal conduct and anti social traits etc.
Scores of execution petitions for payment of maintenance are pending adjudication in almost every guardian court in Lahore and hundreds of such petitions are pending adjudication in guardian courts throughout the province of Punjab since 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 minors, 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.
This article relates to the sorry state of affairs, wherein minor children , who were left in lurch by both their father and paternal relatives, have been involved in fights against their fathers for the past 5-7 years, claiming arrears of maintenance due towards to them, in pursuance of the order passed in their favour in the maintenance proceedings in Guardianship and Family jurisdiction, in the files of multiple Guardian Courts in Lahore District, without getting anything from them, till date. It is an issue which has not yet been addressed by any of the courts of appropriate jurisdiction except for mere notices, summons and warrants of arrest issued one after the other. It is to be noted that the failure of the Guardian Courts in Lahore to ensure compliance of their Orders has resulted in a gross miscarriage of justice for not only the destitute mothers but also for the minor children who are left alone to bear the brunt of the lax laws as well as the failure on the part of Guardian Courts to ensure compliance of their orders thereof.
Our family courts are expected to act in quasi parental jurisdiction as a loco parentis, and deal with delicate matters concerning the rights of the people, particularly of the destitute women and the needy minors, 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 affect the same, serves no useful purpose to the destitute mothers in litigation nor the needy minors, rather their miseries are enhanced. This sorry state of affairs needs to be addressed by the society at large.
The defaulting by the fathers to pay maintenance allow in as much as the incapacity of the Guardian/ Family Courts to effect their orders passed in execution proceedings, 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.
In these peculiar circumstances, responsibility lies on the State; multiple government institutions have been created to rescue the destitute women 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 the State is responsible to provide all what has been guaranteed under it.
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. The intention and object of the framers of the Constitution, while inserting Art.35 was to protect the child from all types of hostile forces, so that it could be ensured that the child was brought up in a conducive and favourable social environment and become a viable citizen with honour and grace.
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.
It is observed that in Pakistan we have no enacted law providing any mechanism for the deprived minors to get maintenance if their father or grandfather, as the case may be, opts not to provide their maintenance.
The liability of a father or a grandfather to maintain his children or grandchildren in the 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 though the judiciary cannot direct organs, authorities and persons included in definition of state under Article 7 to act according to the Principles of Policy, yet the superior judiciary is not barred either to set down a rule for itself to follow Principles of Policy or to declare the same rule for the 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.
The state by recognizing its responsibility both at the Federal and Provincial Level, has constituted institutions for social welfare, including the Bait-ul-Maal, while Punjab has taken the lead through Punjab Bait-ul-Maal Act VII of 1991, which was promulgated on 30th March 1991. The basic principle of the 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 for, which includes relief and rehabilitation of the poor and the needy, particularly poor widows and orphans, educational assistance to the poor and deserving students and for other purposes. There are District Bait-ul-Maal Committees in view of section 7(3) of the said Act working at all district levels.
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 their utilization, including 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 money 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.
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 are poor and those who should have received maintenance also fall under the clause of eligible persons entitled to receive Zakat funds, then suitable directions to Zakat & Ushr Council should also be issued.
The Honourable Lahore High Court, in the citation narrated above said that the Family Courts in the Province, if reached the conclusion that the father or the grandfather, as the case may be, are themselves not in the position within their circumstances to to easily afford to maintain their dependents, after an inquiry as provided in the CPC for pauperism, then direct the plaintiffs 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 claims by the authorities, which would be directed to pay the maintenance to such needy people.
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 wherein the fathers or the grandfathers have deserted to pay the maintenance to their minor children, thereby badly affecting the welfare of those minor children.
It is therefore suggested that a special fund be made/ allocated by the Government of the Punjab or Pakistan Bait-ul-Maal for the payment of maintenance allowance to the minor children from where a maintenance allowance could be regularly paid to the needy minors, in case of boys up till the age of majority and for the girls till they are married, as the case may be, if directed by the concerned family court in this respect.
It is further recommended that the Government of the Punjab, or alternatively Punjab Bait-ul-Maal, should register the names of the affected minors as regular beneficiaries from the District Bait-ul-Maal.
It is further recommended that family/ guardian courts must undertake an inquiry as envisaged by the Code of Civil Procedure for pauperism and implicate the state as a respondent in all cases where the fathers or grandfathers of the minors, as the case may be, are not in a position to easily afford within their circumstances to maintain their dependents and have deserted them and their whereabouts are untraceable since the pendency of such execution/ maintenance suits/ petitions, before them.
Constitution of Islamic Republic of Pakistan, 1973
Guardian & Wards Act, 1890
Muslim Family Law Ordinance, 1964
Family Courts Ordinance 1964,
Zakat & Ushar Ordinance 1980
Punjab Bait ul Maal Act, 1991
PLD 2012 Lahore 445,
PLD 2010 Peshwar 10
PLD 1976 Lahore 930
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.