2021-05-02

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 How a Family Court fixes the maintenance of Children? 

What is the maintenance of children? 

That Section 369 of the Muhammadan Law by D.F. Mullah, maintenance means and includes food, raiment, and lodging. However, it may be observed that from the very language of the above section, such definition is neither conclusive nor exhaustive, and in our view, it undoubtedly has a wider connotation and should be given an extended meaning, for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, which has now attained utmost importance; but obviously corresponding to and commensurating with the means and the capacity of the father to pay.

To interpreting the word “maintenance” some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing, and lodging, it cannot, by any stretch of the imagination, be extended to incorporate within it education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that the child must be maintained until it is in a position to earn its own livelihood, in an honest ad decent manner in keeping with its family status.

How long a father provides maintenance to his Children? 

According to Muhammadan Law of DF Mullah; “370 (1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (section 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. 
(2) If the father is poor and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”  

 

 What will be the quantum of Maintenance ?   

The court while considering the quantum of maintenance will take into consideration the fundamentals being the minors education, status, general expenses as has been clearly set out in PLD 2013 SC 557 . The court must also take into consideration the reasonable probability of obtaining education and the ability to take care of the minors in a stable, safe, and healthy environment. Without due consideration of all these factors, the court cannot conclude positively the quantum of maintenance. There is no hard and fast formula for determining the quantum of maintenance and the main consideration for the Court is the ability of the father to maintain the minors. A father is obligated under the law to take care of his minor children and the quantum has to be determined as per his earning, financial and social status, and the ability that he may have to take care of the minors. This way merely stating that he is jobless will not discharge him of his obligation. The basic objective for determining maintenance is to ensure that in all probability the minors are maintained by the father in a dignified manner with reasonable comfort and that the mother of the child is not left to bear the burden of taking care of the minors.

How the court determin Quantum of maintenance? 

Quantum of maintenance requires due consideration of all factors on the basis of which the court can determine the actual need of the minor. In this regard, it is important for the court to first determine the expenses incurred or likely to be incurred on the minors. For this purpose, the court must look into the living conditions of the minor 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. Special needs of the minor which will include medical or physical needs or special educational needs should also be seen. Special needs will vary from case to case, if 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 these special needs.

GULL HASSAN KHAN ADVOCATE HIGH COURT 

CEO, PAKLAWYER.COM PVT LTD