Understanding Child Maintenance Laws in Pakistan

Child maintenance, also known as maintenance or in Urdu as (نان و نفقہ), is a critical aspect of Pakistani family law that provides financial support to minor or special children during and after dissolution of marriage or separation. It is governed under the Muslim Family Laws and ensures that children receive maintenance and that the separation of parents does not affect their well-being.

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What Is Maintenance

Maintenance under Pakistani law includes food, clothing, shelter and basic life needs. This can be observed in the judgment cited as 2021 MLD 1521 that; “maintenance” includes food, clothing, and lodging, which the father is responsible for providing to his children and wife. The objective is to ensure the minor is maintained by the father in a dignified manner, relieving the mother from bearing the financial burden.

Child Maintenance Under Islam

Islam provides the complete set of rules regarding the maintenance of the wife and child. Most of the law in Pakistan regarding the maintenance of the wife and child is based on Islamic principles.

It can be observed in Surat No 2 : سورة البقرة – Ayat No 233; copied here in Arabic, Urdu and English, as under;

۞ وَٱلْوَٰلِدَٰتُ يُرْضِعْنَ أَوْلَـٰدَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ لِمَنْ أَرَادَ أَن يُتِمَّ ٱلرَّضَاعَةَ ۚ وَعَلَى ٱلْمَوْلُودِ لَهُۥ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِٱلْمَعْرُوفِ ۚ لَا تُكَلَّفُ نَفْسٌ إِلَّا وُسْعَهَا ۚ لَا تُضَآرَّ وَٰلِدَةٌۢ بِوَلَدِهَا وَلَا مَوْلُودٌۭ لَّهُۥ بِوَلَدِهِۦ ۚ وَعَلَى ٱلْوَارِثِ مِثْلُ ذَٰلِكَ ۗ فَإِنْ أَرَادَا فِصَالًا عَن تَرَاضٍۢ مِّنْهُمَا وَتَشَاوُرٍۢ فَلَا جُنَاحَ عَلَيْهِمَا ۗ وَإِنْ أَرَدتُّمْ أَن تَسْتَرْضِعُوٓا۟ أَوْلَـٰدَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُم مَّآ ءَاتَيْتُم بِٱلْمَعْرُوفِ ۗ وَٱتَّقُوا۟ ٱللَّهَ وَٱعْلَمُوٓا۟ أَنَّ ٱللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌۭ ٢٣٣

مائیں اپنی  اولاد  کو دو  سال  کامل دودھ پلائیں  جن  کا  ارادہ  دودھ پلانے کی  مدت  بالکل پوری کرنے کا ہو اور  جن  کے بچے ہیں ان کے ذمہ ان کا روٹی کپڑا ہے جو مطابق دستور کے ہو ہر شخص اتنی ہی  تکلیف  دیا جاتا ہے جتنی اس کی  طاقت  ہو  ماں  کو اس کے بچے کی وجہ سے یا  باپ  کو اس کی  اولاد  کی وجہ سے کوئی ضرر نہ پہنچایا جائے وارث پر بھی اسی جیسی  ذمہ داری  ہے ، پھر اگر دونوں ( یعنی  ماں   باپ  ) اپنی رضامندی اور باہمی مشورے سے دودھ چُھڑانا چاہیں تو دونوں پر کچھ  گناہ  نہیں اور اگر تمہارا  ارادہ  اپنی  اولاد  کو دودھ پلوانے کا ہو تو بھی تم پر کوئی  گناہ  نہیں جب کہ تم ان کو مطابق دستور کے جو  دینا  ہو وہ ان کے  حوالے  کر دو اللہ تعالٰی سے ڈرتے رہو اور جانتے رہو کہ اللہ تعالٰی تمہارے  اعمال  کی دیکھ بھال کر رہا ہے ۔ 

˹Divorced˺ mothers will breastfeed their offspring for two whole years, for those who wish to complete the nursing ˹of their child˺. The child’s father will provide reasonable maintenance and clothing for the mother ˹during that period˺. No one will be charged with more than they can bear. No mother or father should be made to suffer for their child. The ˹father’s˺ heirs are under the same obligation. But if both sides decide—after mutual consultation and consent—to wean a child, then there is no blame on them. If you decide to have your children nursed by a wet-nurse, it is permissible as long as you pay fairly. Be mindful of Allah, and know that Allah is All-Seeing of what you do.

The principles of Islam are strictly applied to the Pakistani law of child maintenance. It can be observed in the judgment reported as 2022 PLD 840 in which the court held that Under Islamic law, a father has a legal, moral, and religious obligation to maintain his children until the age specified by law or Sharia. This duty originates from the directives of the Holy Quran.

Child Maintenance Law in Pakistan

The right of maintenance of a child is secured under Pakistani legislation. Pakistani laws cover every aspect to ensure that no child is deprived of his rights.

Under the Muslim Family Laws Ordinance 1961

Section 9 of this Act states that a child has the right to receive adequate maintenance from his father. It is the father’s duty to provide for the child’s needs. If the father fails in this responsibility, the child, through his next friend, has the right to seek legal action to enforce the right to maintenance.

Under the Family Courts Act, 1964

Under item 3 of Schedule Part I, made under Section 5 of this Act, the Family Court assumes exclusive jurisdiction to adjudicate matters related to child maintenance of a child.

Right of Maintenance During Marriage

Most people think that child maintenance can only be claimed when the marriage between the parents is dissolved or when separation occurs. However, in reality, if the marriage between the parents is intact and the child is living with them, it does not affect the child’s right to maintenance; the father is still responsible for maintaining his child.

Maintenance of Child After Divorce in Pakistan

After the separation between the parents, either by way of Divorce or Khula or any other mode, whether the child is living with the father, mother, or another relative, the father remains responsible for the child’s maintenance. Whereas it does not affect the father’s obligation to pay child maintenance after talaq, even if the custody of the child is with the mother, the father is still under obligation to pay monthly maintenance for his child. He may contest custody, but this does not change the fact that he is the natural guardian of the child and is legally and morally bound to provide maintenance.

In a judgment reported as 2022 MLD 1750m, it is held that; A father is obligated to maintain his son until he attains puberty and his daughter until her marriage. This duty is absolute and not negated by the children residing with their mother unless altered by legal proceedings.

Legal Remedies for Non-Payment of Maintenance

If the father refuses to pay the maintenance, the child(minor) through his next friend or custodian can claim his maintenance through the court by filing a suit for maintenance. This suit can be filed during the marriage or after divorce as the case may be. The suit is filed under Section 7 of the Family Courts Act, 1964, and the court’s jurisdiction is assumed under item 3 of Schedule Part I, made under Section 5 of the same Act.

Suit for Maintenance of Child

The suit is filed under Section 7 of the Family Courts Act, 1964, and the court’s jurisdiction is assumed under item 3 of Schedule Part I, made under Section 5 of the same Act. As this Act is designed to protect women and children, for the wife’s convenience, the suit can be filed in the court where she currently or ordinarily resides.

Procedure of Case for Maintenance of Child in Pakistan:

  •  Filing of Suit Under Section 7
    The child files a suit for maintenance in the family court through the next friend, providing necessary facts and relevant documents.
  • Notice to the father
    The court schedules a hearing within 30 days and issues a summons to the father, including a copy of the plaint.

Fixation of Interim Maintenance on The First Date of Hearing

Under section 17(A) of the Family Court Act, 1964, upon the defendant’s first appearance in court, the Family Court fixes an interim monthly maintenance amount for the child. This will set a temporary financial support amount during the pendency of legal proceedings so the child does not suffer until the decision is made.

Failure to Pay Interim Maintenance

If the defendant fails to pay the interim maintenance amount within fourteen days of each month, the right to defend the case will be closed. Consequently, the court will decree the maintenance suit right away based on the claims made in the plaint and supporting documents provided with it.

In judgment reported as 2024 SCMR 1292 SC, the supreme held that Under Section 17A of the Family Courts Act, 1964, the Family Court has the authority to strike off the defense of a father who fails to comply with an order for interim maintenance payments for his minor children. In the above cited case, the father failed to pay the interim maintenance allowance by the fourteenth day of each month during the proceedings, despite being warned by the court to clear the arrears. The court determined the maintenance amount in a reasonable manner, and the High Court upheld this determination. Due to the father’s disregard for the court order and attempts to delay payment, the Supreme Court imposed a cost of Rs. 100,000 on him, which is to be recovered as part of the maintenance decree.

  • Written Statement
    The fathers submits his written statement and documents on the scheduled date. If he fails to appear, the court may proceed without him, but he can contest the case later if he shows a valid reason.
  • Pre-Trial Reconciliation
    Both parties appear before the court for reconciliation. If no agreement is reached, the court frames issues and sets a date for evidence.
  • Recording Evidence
    Parties present their evidence and witnesses. Cross-examination occurs, and the court requires notice of witnesses within three days after issues are framed.
  • Post-Trial Proceedings
    After the evidence is closed, the court attempts reconciliation again. If unsuccessful, it issues its judgment.
  • Execution of the Decree
    If no appeal is made, the applicant files an execution petition, and the family court will enforce the decree.

Documents Required for Filing Suit for Maintenance of A Wife:

  • Identity Documents such as CNIC or Passport.
  • Birth Certificate
  • Marriage Registration Certificate (if Nikahnama is registered with NADRA).
  • Proof of father’s income, if any.
  • Any proof that shows the living standards of the child.
  • Any other relevant document that makes the case stronger.

Determination of Quantum of Maintenance

If a father fails to provide adequate maintenance voluntarily, the minor, through his next friend, can file a lawsuit seeking maintenance. The court determines the quantum of maintenance based on several factors:

  • Father’s Income: The court assesses the husband’s earnings and financial capacity.
  • Financial Status: The father’s financial situation is considered. The court also considers the father’s financial obligations other than child maintenance, such as his dependents, i.e., his parents and young siblings, etc., and financial commitments.

As reported in the judgment cited as 2021 CLC 809 it was held that; To determine a father’s income for maintenance purposes, the court may invoke subsection (4) of Section 17-A of the Family Courts Act, 1964. This provision facilitates the court in assessing the father’s financial position.

Child’s Needs and Standard of Living: The court looks into the child’s requirements and the lifestyle he was enjoying.

The Family Court has the authority to fix a maintenance amount that may exceed what was initially requested in the plaint. This could be due to various factors, such as changes in circumstances or the passage of time.

Court Can Call Record from Authorities

The Family Court has the authority to determine the appropriate maintenance amount and can summon relevant documentary evidence from any organisation, body, or authority.\ for example, nowadays, calling records from FBR to assess the father’s financial situation is in practice. These evidences assist the court to ensure that the maintenance amount is fair and reasonable.

Burden of Proof of Financial Status of Father

The burden of proof regarding the financial status is not on the minor, but on the father; it can be seen in the judgment cited as 2023 CLC 161, where it says that the minor is not required to prove the father’s financial capacity to claim maintenance. Instead, the father must demonstrate his financial resources; if he fails to do so, the court may draw adverse inferences against him.

Annual Increase in Maintenance

The court may also set an annual increase in the maintenance amount. If the court does not specify this increase, the maintenance amount will automatically rise by ten percent each year.

For how Long Father Is Obliged to Pay Maintenance

Father’s obligations regarding maintenance vary for son and daughter. Father has to maintain his son only until he reaches the age of majority i.e., 18 years. In contrast, for daughter, until she is married and moves to her husband’s home including the expenses of marriage. It can be observed in two important judgements below;

2022 MLD 945: Where it says that a father must maintain his son until he attains majority and his daughter until she is married and moves to her husband’s home.

2023 CLC 244: Where it says that a father is obligated to provide past and ongoing maintenance for his minor daughter until she marries, as emphasized by the Quran on parental duties toward children.

Grandfather’s Liability to Pay Maintenance Allowance

The responsibility for maintaining minor children may extend to the grandfather under certain circumstances. According to the principle established in 2024 PLD 67 SC, if the father is poor, infirm, or incapable of earning, and the mother is also financially unable to provide support, the affluent grandfather may be obligated to maintain the children. However, a decree for maintenance issued against the father cannot be executed against the grandfather. Instead, the child must initiate a separate suit for maintenance against the grandfather if no property belonging to the father, the judgment debtor, can be found for the execution of the decree

Two important judgments are produced here for better understanding;

2024 CLC 141: Where it says that An affluent grandfather is obligated to maintain his minor grandchildren only when the father is poor, infirm, and incapable of earning, and the mother is also poor.

2024 PLD 67 SC: Where it says that A maintenance decree against the father cannot be executed against the grandfather. If the father’s property is insufficient, the child must file a separate suit against the grandfather for maintenance.

How the LEX Legal Team Can Assist

At LEX, we provide legal assistance to both men and women regarding maintenance cases. M/s Legally-Ethically-Expertly (LEX), a leading law firm with experienced lawyers, provides this article’s information for public awareness through our website, lex.com.pk. We strive to provide valuable insights to the general public but do not regard this content as legal advice. However, for personalized guidance or assistance with legal matters, we encourage our valued readers to contact our expert family lawyers in Pakistan by calling or WhatsApp at +92-310-8888539 or emailing info@lex.com.pk. We are here to assist with tailored solutions.

Frequently Asked Legal Questions

Q1: What is the legal basis for child maintenance in Pakistan?

Under Muslim family laws, such as the Muslim Family Law Ordinance of 1961 and the Family Court Act of 1964, the father is liable to pay the maintenance allowance.

Q2: How is child maintenance determined under Pakistani law?

It depends on various factors, such as the father’s financial status and the lifestyle of the child. But the ultimate onus of proof is on the father’s shoulder to prove his income, concealing his income may affect him adversely. On the other hand, court has its own mechanism to collect data from sources to asses father’s income.

Q3: Can a father be held responsible for child maintenance if the mother has custody after divorce?

Yes, the father is always the responsible person for maintaining his child.

Q4: What are the rights of a child regarding maintenance during a marriage?

The marital status of parents does not affect child maintenance.

Q5: How can a child file for child maintenance if the father fails to pay?

The child can file a suit for maintenance through his next friend, such as his mother or the person he is under custody of.

Q6: What happens if a grandfather is affluent but the father cannot provide maintenance for his children?

Then, the grandfather may be held responsible for the maintenance, but he must be pleaded as a party in order to seek the child's maintenance allowance from him.

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Note:

While we strive to provide accurate information, please note that the details in this article may contain human errors and are not meant to serve as legal opinion or advice. This content is purely for informational purposes. If you have a specific legal query or need further clarification, we warmly invite our valued readers to reach out to us by calling or WhatsApp at +92-310-8888539, or email at info@lex.com.pk. We are here to assist with tailored solutions.

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