Grandfather’s maintenance: present capacity is separate from past liability

Facts

From the judgment

The child's father died before the child was born. The mother sued the paternal grandfather for the child's maintenance; the Family Judge, Bhiria City, decreed Rs. 100,000 as past maintenance and Rs. 8,000 a month with a 10% annual increase. (p. 1)

On appeal the District Judge, Naushahro Feroze, reduced the monthly amount to Rs. 7,000 and otherwise kept the decree. (p. 1)

After the birth the child had lived with the grandfather for some time. When the mother took custody through an application under section 491 Cr.P.C., she executed a personal-recognisance bond on 23 January 2021 allowing him to meet the child and recording that she would bear the child's expenses herself. (pp. 1-2)

Procedural history

From the judgment

1. Date not statedFamily Suit No. 141 of 2023 (maintenance of the child, among other prayers), Family Judge, Bhiria CityPast maintenance Rs. 100,000; monthly Rs. 8,000 with 10% yearly increase (p. 1)
2. 19 March 2025Family Appeal No. 34 of 2024, District Judge, Naushahro FerozeMonthly maintenance reduced to Rs. 7,000; otherwise maintained (p. 1)
3. 29 October 2026C.P. No. S-155 of 2025, Sindh High Court, Sukkur BenchPartly allowed: past maintenance of Rs. 100,000 set aside; rest of the decree intact (p. 2)

Questions of law

1. Was the grandfather shown to lack the means to pay the child's monthly maintenance? Our framing

   The court's answer: No. He brought no evidence of incapacity, admitted income from a bakery and said he was willing to pay, though on his own terms. (p. 2)

2. What was the effect of the mother's 2021 bond undertaking to bear the child's expenses? Our framing

   The court's answer: It was not a waiver of the child's maintenance for all time, but it showed she had represented she could maintain the child for some time, which was relevant to past maintenance; the courts below had not noticed it. (p. 2)

Arguments

From the judgment

Petitioner or appellant

Accepting that under section 370(3) of Mulla's Muhammadan Law a grandfather can be liable once the father has died, the grandfather argued that liability arises only where the mother is also poor and the grandfather is in easy circumstances; that he had other dependants and no fixed income; and that the mother had undertaken in a bond to bear the child's expenses herself (pp. 1-2).

Court's reasoning

From the judgment

The grandfather's liability

Counsel for the grandfather accepted, on the principle in section 370(3) of Mulla's Muhammadan Law, that where the father has died the grandfather can be held liable to maintain the child, subject to the mother's and the grandfather's circumstances. (p. 1)

Monthly maintenance stands

He brought no evidence before the Family Judge of inability to pay, admitted in cross-examination that he had income from a bakery, and said in evidence that he was willing to pay monthly maintenance on his own terms. His plea of no financial capacity was therefore not supported by the evidence. (p. 2)

Past maintenance and the mother's bond

The mother admitted executing the 2021 bond, which recorded that she would bear the child's expenses. That was not a waiver of the child's maintenance for all time, but it showed she had represented that she could maintain the child for some period; since section 370(3) considers the mother's means before holding the grandfather liable, it was relevant to past maintenance, and the courts below had not noticed it. (p. 2)

Result

The courts below misread the evidence on past maintenance. The appellate decree was set aside to the extent of the Rs. 100,000 past maintenance; the rest, including monthly maintenance of Rs. 7,000, remains. The petition was partly allowed. (p. 2)

Judicial observations

From the judgment

The court's exact words.

Practical implications

Our analysis

For lawyers

• In a claim against a grandfather, plead the father's death, the mother's own means and the grandfather's means separately, and keep past and future maintenance as separate claims.
• Disclose and address any earlier undertaking by the mother (for example in a bond on custody) about the child's expenses; it can defeat the past claim even though it does not waive future maintenance.
• A grandfather pleading incapacity must prove it: income, business records and dependants. An admission of business income will usually sink the plea.

For everyone else

• If a child's father has died, the child's paternal grandfather may have to pay the child's maintenance if he can afford it.
• A mother who once promised in court to pay for her child herself has not given up the child's right to future maintenance, but she may not be able to claim for the past.

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

Limits of this judgment

Our analysis

• A short single-judge order decided without appearance by the mother on the day of hearing.
• The order applies the principle in Mulla's commentary as accepted by counsel; it does not set out the full conditions of a grandfather's liability.
• The monthly amount of Rs. 7,000 was left as fixed by the appellate court.

Related

Our guide

• Wife and Child Maintenance Lawyer in Pakistan

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