Military pension can be attached to enforce a final child-maintenance decree

Facts

From the judgment

The wife sued for dissolution and dowry articles and the two minor children for maintenance. On 22 January 2014 the consolidated suits were decreed: Rs. 3,000 a month for each child from institution of the suit until marriage or change of custody, with a 10% annual increase, and dowry articles (excluding gold) worth Rs. 248,570. Cross-appeals were dismissed on 28 February 2015, and the decree became final. (para 2)

In execution the Family Court, Jaranwala, issued non-bailable warrants and moved to attach the father's pension account. His application to cancel the warrants and release the pension was dismissed on 17 September 2019. (paras 1-2)

Because two Lahore High Court judgments seemed to conflict (Rehana Rehman, 2011 CLC 1040, disallowing attachment of a retired Army official's pension; Najeeb Ahmad Abbasi, PLD 2011 Lahore 334, allowing attachment of a serving officer's salary), the single judge referred the question to a Division Bench. (para 2)

Procedural history

From the judgment

1. 22 January 2014Consolidated suits (dissolution and dowry; children's maintenance), Family CourtMaintenance Rs. 3,000 per child per month with 10% yearly increase; dowry articles Rs. 248,570 (para 2)
2. 28 February 2015Cross-appeals, Appellate courtDismissed; decree final (para 2)
3. 17 September 2019Execution: application to cancel warrants and release pension, Judge Family Court, JaranwalaDismissed (para 1-2)
4. Heard 16 September 2026; signed 1 October 2026W.P. No. 71801 of 2019 (referred to a Division Bench), Lahore High Court, LahoreDismissed; execution to be concluded within thirty days (para 18)

Questions of law

1. Whether the pension of a retired Army official/judgment-debtor can be attached in execution of a final decree for maintenance passed by a Family Court, notwithstanding section 11 of the Pensions Act 1871, section 171 of the Pakistan Army Act 1952 and the Code of Civil Procedure 1908? Framed by the court

   The court's answer: Yes. Section 11 is not attracted because minor decree-holders are not 'creditors' and child maintenance is not an ordinary debt; section 171 covers pay and allowances of serving persons, not pension. (para 3, 15)

Arguments

From the judgment

Petitioner or appellant

The money sought was pension, not the salary of a serving member of the Armed Forces; pension is protected by section 11 of the Pensions Act and section 60 CPC; section 171 of the Army Act protects pay and allowances; Najeeb Ahmad Abbasi concerned a serving officer's salary and did not apply (para 4).

Respondent

The decree is a maintenance decree for minor children under the special Family Courts Act; section 13 provides its own enforcement mechanism and section 17 excludes the technical application of the CPC; relying on Najeeb Ahmad Abbasi, Amjad Iqbal (2015 SCMR 128) and Muhammad Muzamal Riaz (2020 CLC 970), the Law Officers argued that the pension statutes do not restrict a Family Court decree (para 5).

Court's reasoning

From the judgment

Special enforcement under the Family Courts Act

Section 13 gives Family Courts a special, enlarged mechanism for enforcing their decrees, including recovery of money as arrears of land revenue and execution by the court itself or another civil court. Section 17 means the CPC's technical provisions are not mechanically applied, and it must be read with section 13. (para 8-9)

Children are not 'creditors'

Section 11 of the Pensions Act bars attachment of pension 'at the instance of a creditor'. A child's right to maintenance arises from the parent-child relationship and the father's legal obligation, not from lending; the decree only quantifies that pre-existing obligation. A creditor in the ordinary legal sense is owed a debt in a creditor-debtor relationship, so a child enforcing parental maintenance is not an ordinary creditor. (para 10)

Section 171 of the Army Act

Section 171 protects the 'pay and allowances' of persons subject to the Army Act from attachment by 'any civil or revenue court'. This case concerned pension, not pay, and a Family Court, being a special court not among the classes of civil courts in section 3 of the West Pakistan Civil Courts Ordinance 1962, is not named in it. (para 11)

Qur'anic and constitutional basis

Verse 2:233 of the Holy Qur'an places on the father the duty to provide for his children according to his means; Articles 2 and 2-A of the Constitution and Muslim personal law (Mulla) confirm that the child's right and the father's duty cannot be equated with an ordinary commercial claim. (para 12-14)

Answer and result

Section 11 of the Pensions Act is not attracted to a final maintenance decree in favour of minor children. The decree was final and executable under section 13, and the father could not claim immunity merely as a pensioner. The petition was dismissed and the executing court directed to proceed expeditiously, as far as practicable within thirty days. (para 15-18)

Judicial observations

From the judgment

The court's exact words.

Practical implications

Our analysis

For lawyers

• In executing a child-maintenance decree against a retired service member, identify the pension account and seek its attachment; rely on this Division Bench ruling against a section 11 Pensions Act objection.
• Distinguish pension from the pay and allowances of serving personnel, which section 171 of the Army Act addresses.
• Use section 13 of the Family Courts Act (including recovery as arrears of land revenue) and attach an arrears schedule applying the decree's annual increases.
• The ruling concerns a final decree for minor children; consider separately whether it extends to other kinds of maintenance.

For everyone else

• If a court has ordered a father to pay maintenance for his children, his pension can be used to pay it, even if he is a retired soldier.
• Children owed maintenance are not treated like ordinary lenders; the father's duty to support them comes first.

General points drawn from this judgment, not advice on your own case.

Limits of this judgment

Our analysis

• The answer is framed for a final maintenance decree in favour of minor children; the Court did not decide other maintenance claims or other kinds of decree.
• It concerns pension of a retired Army official; the attachment of serving personnel's pay under section 171 was not decided.
• The petitioner's argument on section 60 CPC was not separately analysed beyond section 17 of the Family Courts Act.

Related

Our guide

• Wife and Child Maintenance Lawyer in Pakistan

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