Child support is a legal duty, cannot be evaded: LHC

LAHORE: The Lahore High Court (LHC) has ruled that a father cannot use a private settlement to avoid his continuing legal, moral and religious duty to support a minor child, holding that a child’s right to maintenance cannot be permanently given up or extinguished.

Justice Mohsin Akhtar Kayani dismissed a petition filed by Akhtar Hussain Awan against concurrent decisions of the family and appellate courts, which had accepted a maintenance claim brought by a minor, Naseer Akhtar Awan, through his mother, Sadia Awan.

The petitioner argued that an earlier maintenance case had been resolved through a 2007 compromise under which Rs60,000 was paid and the parties agreed not to pursue future claims. He further maintained that a later suit filed in 2019 was barred by limitation as well as the principle of res judicata, under which the same matter cannot be adjudicated twice.

Rejecting that argument, Justice Kayani held that any agreement preventing a minor from enforcing future maintenance rights is void. The judge said that while already accrued claims may be settled, the ongoing right of a dependent minor to maintenance cannot be waived.

Recurring obligation

The ruling stated that maintenance for a minor child gives rise to a recurring cause of action and therefore is not barred by res judicata. The court held that a father’s responsibility includes providing food, clothing, shelter, education, healthcare and other necessities.

"Under the law, every father is under a legal as well as moral obligation to maintain his wife and minor children in all respects," Justice Kayani observed in the judgment, further adding that "Such obligation is neither optional nor contingent upon the will of the father, rather it is a continuing responsibility imposed by law as well as by the injunctions of Islam."

According to the judgment, the court also referred to the Holy Quran and traditions of the Holy Prophet (peace be upon him), saying a father cannot escape this duty through private arrangements that are harmful to a minor’s welfare.

Direction for legal reform

Justice Kayani also held that Article 120 of the Limitation Act, 1908, does not apply to claims for past maintenance by a minor child or by a wife during an existing marriage.

After dismissing the petition, the judge directed that a copy of the judgment be sent to the Law and Justice Commission and the Ministry of Law so they may consider changes in limitation laws governing maintenance cases in line with Islamic principles.