2020-02-09

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2015 PLD 336 LHC
MARIAM BIBI through Abida Parveen Vs   NASEER AHMAD

S. 5, Sched.—Constitution of Pakistan, Art. 199—Constitutional petition—Suit for recovery of maintenance allowance for adopted minor —Concept of “constructive guardianship”—Fiduciary obligations and duties of adoptive parents towards minor —Question before the High Court was whether husband/adoptive father was compelled to pay maintenance allowance for minor who had been adopted by the parents during the time of their marriage—Held, that per concept of adoption in Islam, the wife could not claim maintenance from the husband for minor who had no rizai relationship with the adoptive mother; however from the angle of the concept of “constructive guardianship”, the petitioner/adoptive mother was entitled to claim maintenance allowance for such adopted minor —High Court observed that if adoptive parents voluntarily undertake, before public at large, to perform the noble task of taking care of a minor , by doing as they not only create a relationship of trust with the minor but also assume the role and status of “constructive guardian” of minor —Trust and constructive guardianship also created a fiduciary obligation/relation between the adopted parents and the minor —-Fiduciary was a person in a position of trust, or occupying a position of power and confidence with respect to another, such that he was obliged by various rules of law to act solely in the interest of the other, whose rights he had to protect—Doctrine of “constructive guardianship” has been a part of the law of Guardians and Wards for a long time and such a situation arose where one assumes to act as a guardian or enters upon an infant’s estate, who has not been regularly appointed as guardian, which may result from a voluntary assumption of the duties, a void appointment by a court without jurisdiction, or acts performed by one who was by himself and other parties concerned, considered an “accommodation guardian”—Recognition of the need for protection of the infant / minor resulted in giving such a minor an election to treat such a person as a wrongdoer or as a guardian and in the later case a relation similar to that of trustee and cestui que trust was established and the guardian de son tort may be compelled to account as a guardian—In the present case, the minor was adopted by the parents and remained with the adoptive parents for a considerable period of time and the husband/respondent had admitted that the minor was adopted and presented as his daughter before the public-at-large; and therefore for all intents and purposes the acts of the husband/respondent had created relationship of trust and constructive guardianship between the husband and the minor which also implied fiduciary obligations and duties to be performed by the husband/respondent; which inevitably included the maintenance of the minor —High Court held that the respondent/husband was therefore obligated to pay maintenance allowance for his adopted daughter—Impugned orders were set aside, and constitutional petition was allowed, in circumstances.