S. 17-A---Interim maintenance, fixation of---Guidelines.

 P L D 2016 Lahore 73

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 17-A---Interim maintenance, fixation of---Guidelines.

Following are guidelines with regard to fixation of interim maintenance for minor:

(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964 is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated;

(ii) Family Court should broadly look into social status of parties, earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance;

(iii) For the reason that no right of appeal etc. has been provided against fixation of interim maintenance, such order being tentative and interim in nature, the Family Court should be more careful and precise in such context to ward off any injustice.

I. Maintenance allowance is indispensable right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings.

II. Although section 17-A of the ibid Act empowers Family Court to pass an order for grant of interim maintenance allowance at any stage of the proceedings, in the normality of the circumstances, it must be passed after hearing "both of the parties" unless the attitude and conduct of the defendant/father is evasive.

III. The order for grant of interim maintenance is made on the basis of tentative assessment of the material available on file and keeping in view the social status of the parties. Further, both the above, material available and social status, should be mentioned in the order for the grant of interim maintenance. Further the quantum of interim maintenance should be "bare minimum" to meet the day to day needs of the recipient in the narrow context.

IV. Although the family laws have been enacted to promote, protect and advance the rights of women and children yet at the interim stage, the version of the respondent/defendant be given a sympathetic or somewhat preferable consideration because, non-payment of interim maintenance allowance will cut throat of his invaluable right i.e. "right to defence" and in consequential effects, children/women would be the losing and deprived parties.

V. Further, if the case is not decided within the statutory period as given in Section 12-A of the West Pakistan Family Courts Act, 1964 either party may apply to the High Court for appropriate direction. However, the order for grant of interim maintenance shall hold the field unless reviewed by High Court under Section 12-A or Family Court itself reviews it at any stage as observed below.

VI. Family Court, according to section I2-A" of the West Pakistan Family Courts Act, 1964, is under legislative direction to decide the case within six months. Although this provision is directive as no penalty/consequences are mentioned for non-compliance and in this regard reference is made to (2001 SCMR 1001). But in case the matter is not decided within six months and the delay is due to the plaintiff party, then Family Court either on its own motion or on the application of the defendant/father review its earlier order for grant of interim maintenance allowance.

(a) West Pakistan Family Courts Act (XXXV of 1964)--

---Ss. 17-A & 5, Sched---General Clauses Act (X of 1897), S.24-A-- Constitution of Pakistan, Arts. 199 & 10-A---Constitutional petition-- Maintainability---Maintenance of minor child---Interim maintenance, fixation of---Procedure---Interim order---Appeal---Family Court fixed interim maintenance of minor at the rate of Rs.10,000/- per month-- Validity---Family Court had power to pass interim maintenance order at any stage of the suit---Interim maintenance should be fixed after filing of written statement of the defendant---If defendant had found that same was excessive or if order suffered from any illegality, irregularity or same was arbitrary, fanciful, void ab initio, without jurisdiction or same had attained the status of final order, then the constitutional petition was maintainable---Constitutional petition was not maintainable where factual controversies were involved---Public Authority was required to furnish reasons for every order whether the same was executive or judicial and order for grant of interim maintenance allowance was not an exception----Family Court while keeping in view prima facie status of both the parties fixed tentative interim maintenance allowance of the minor daughter at the rate of Rs.10,000/- per month---Father was working abroad but he had not mentioned about his actual salary in his written statement---Amount fixed by the Family Court could not be termed excessive or in consistent with ostensible financial status of father in the given circumstances-- Father was under legal as well as moral obligation to maintain and support his minor daughter as per Injunction of Islam---Impugned order could not be assailed in constitutional petition as statute did not provide any appeal against interlocutory order---Impugned order was neither void ab initio nor without jurisdiction and not a final order-- Amount of Rs.10,000/- per month as an interim maintenance was sufficient to meet day to day expenses of minor daughter who was of only one and half year old---Family Court, while passing the interim maintenance was required to give the bear minimum to the minor---No illegality or material irregularity had been pointed out in the impugned order---Both the constitutional petitions were dismissed in circumstances.

Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD 135; Mst. Samina Afzaal and 5 others v. Additional District Judge and another 2010 MLD 52; Awais Khalid v. Judge Family Court and others 2011 YLR 3034 and Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lah. 420 ref..

Sikhawat Hussain v. Farzand Bibi and 6 others 2004 MLD 1834; Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771; Muhammad Khalid Javeed v. Mst. Shahida Parveen and 4 others 2007 YLR 1366; Aamer Mehmood Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105; Abrar Hussain v. Mehwish Rana and 3 others. PLD 2012 Lah. 420; Nadeem Raza v. Judge Family Court and 3 others 2013 YLR 965; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Mst. Sitwat Chughtai and another v. Judge, Family Court, Lahore and another PLD 2009 Lah. 18 and Muhammad Saad Ali and 2 others v. Mst. Maryam Khan and 2 others 2014 CLC 715 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Preamble---Object---West Pakistan Family Courts Act, 1964 had been established for protection and convenience of the weaker and vulnerable segments of the society i. e. women and children.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 17-A---Interim maintenance, fixation of---Procedure---Family Court had power to pass interim maintenance order at any stage of the suit---Interim maintenance should be fixed after filing of written statement of the defendant.

(e) West Pakistan Family Courts Act (XXXV of 1964)--

---S. 14---Interim order---Remedy---No remedy of appeal, revision or review had been provided against an interim order passed by the Family Court.

(f) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 14---Interim order of Family Court, review of---Scope---Family Court had power to review its own order but only to the limited extent.

(g) General Clauses Act (X of 1897)---

----S. 24-A---Constitution of Pakistan, Art. 10-A---Right to fair trial-- "Scope---Public authority was required to furnish reasons for every order whether same was executive or judicial.

(h) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 14---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Interim order---High Court avoid interference in interlocutory order where no appeal was provided in the relevant statute against interlocutory order.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165; Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447 and Spectrum Plus Limited and others v. National Westminster Bank PLC ([2005] 2 AC 680) rel.

(i) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Constitutional petition was not maintainable where factual controversies were involved.

(j) Interlocutory order---

----Meaning---"Interlocutory order" was an order in which no final verdict was pronounced but an ancillary order was passed with the intention to keep the same operative till final order/decision was passed in the pending matter.

Rao Javed-ul-Haq Khan and Shams Nouman Qazi for Petitioner/father.

Muhammad Imran along with Respondent No.2/Mother.

ALI ADNAN DAR VS JUDGE FAMILY COURT
P L D 2016 Lahore 73
Before Shezada Mazhar, J
ALI ADNAN DAR through Attorney---Petitioner
Versus
JUDGE FAMILY COURT and others---Respondents
Writ Petition No.21213 of 2014, decided on 07/11/2014.

ORDER

SHEZADA MAZHAR, J.---Through this judgment, I propose to dispose of Writ Petition Nos. 21213 of 2014 as well as 23607 of 2014 as both the petitions have been filed against the same order dated 12-7-2014 whereby interim maintenance of the minor was fixed by the learned Judge Family Court at the rate of Rs.10,000/- per month.

2. Writ Petition No.21213 of 2014 has been filed by the petitioner/father for reduction of the interim maintenance, whereas Writ Petition No.23607 of 2014 has been filed by respondent/mother for enhancement of the interim maintenance allowance.

3. Facts necessary for disposal of the present writ petitions are that parties entered into a contract of marriage on 8-4-2012. Out of this wedlock one daughter namely Noor-ul-Aain Ali was born on 5-2-2013: However after the birth of the minor daughter the parents of the petitioner/father allegedly forcefully turned out the respondent/mother from their house and also tried to snatch the minor daughter, therefore, respondent/mother filed a suit for recovery of dowry articles/gold ornaments along with maintenance allowance. The said suit was contested by the petitioner/father by filing written statement. The Family Court on failure of the pre-trial reconciliation proceeding, due to divorce between the parties, fixed the interim maintenance allowance of the minor at the rate of Rs.10,000/- per month vide order dated 12-7-2014. The said order of the interim maintenance is challenged by both the petitioner/father and respondent/mother through separate writ petitions.

4. Both the learned counsel were asked to address arguments on the maintainability of the present writ petitions before proceeding with the merits of the case.

5. Learned counsel for the petitioner/father relied upon Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD 135 (Karachi) and Mst. Samina Afzaal and 5 others v. Additional District Judge and another 2010 MLD 52 (Lahore) to state that writ petition against interim order is maintainable. Further states that no appeal is available against interim order, therefore writ petition being efficacious and adequate remedy lies against interim orders.

6. On the other hand, learned counsel for the respondent/mother states that writ against interim order lies only if the order passed by the learned Family Court is illegal, mala fide or without jurisdiction. In this regard relied upon Awais Khalid v. Judge Family Court and others 2011 YLR 3034 (Lahore) and Abrar Hussain v. Mehivish Rana and 3 others (PLD 2012 Lahore 420).

7. Both the learned counsel for the parties also made submissions in support of their respective claims.

8. I have heard the learned counsel for both the parties and have also gone through the case-law relied upon by them. Besides, I have also gone through other judgments on the maintainability of the writ petition against interim order.

9. It has been observed that interlocutory order is an order in which no final verdict is pronounced, but an ancillary order is passed with the intention to keep the same operative till final order/decision is passed in the pending matter. It is also observed that under the relevant laws legislature has not provided remedy of appeal, revision or review against an interim order, therefore Hon'ble Supreme Court of Pakistan in Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others (1996 SCMR 1165) held as under:--

"Constitutional jurisdiction, exercise of statute excluding a right of appeal from the interim order could not be bypassed by bringing under attack such interim orders in constitutional jurisdiction. Party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such order."

Also in Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State (1999 SCMR 1447) the Hon'ble Supreme Court held:--

"It is well settled that orders at the interlocutory stages should not be brought to the higher Courts to obtain fragmentary decision, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. Refer the case of "Mushtaq Hussain Bukhari v. The State" 1991 SCMR 2136, Muhammad Afzal Zullah, the then Hon'ble Chief Justice, at page 168 of the report observed as follows:--

"It is a wrong or at least misstatement in our state of law, practice, procedures and proceedings in the Courts of law, that wrong orders should be corrected at the time they are passed because it would take less time for the case to conclude. This might have been true half a century to quarter century ago. Thereafter, the challenge to the interlocutory orders has brought about a deluge in the administration of criminal justice. Cases started piling up with the result that the concept of speedy justice came to a grinding halt and powers that may be, started thinking of curtailing remedies even reducing the right of appeals. Cases like the present one do justify such an angry re-action but with a little change of practice in the technical field (for example amendment, vis-a-vis, the subject in section 197, Cr.P.C. it is hoped there would be no need to curtail the remedies is that too in the stage where we are passing, right be counter-productive".

From the above it is clear that interference at the interlocutory stage should be avoided by the High Courts under its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 especially when the legislature has not provided any appeal against interlocutory orders in the relevant statues.

10. However, as Lord Nicholls of Birkenhead has held in Spectrum Plus Limited and others v. National Westminster Bank PLC ([2005] 2 AC 680) as under;

"Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. 'Never say never' is a wise judicial precept, in the interest of all citizens of the country." Therefore, in the extreme exceptional cases a writ petition against interlocutory orders may be held maintainable.

11. Under the West Pakistan Family Courts Act, 1964 (WPFCA, 1964) Family Courts has the power to grant interim maintenance under Section 17-A which states;

Interim order for maintenance.--At any stage of proceedings in a suit for maintenance, the family Court may pass an interim order for maintenance, whereunder the payment shall be made by the fourteenth of each month, failing which the court may strike off the defence of the defendant and decree the suit."

12. Under the above provision, Family Court has the power to pass interim maintenance order at any stage of the suit. Normally it is passed after filing of the written statement on behalf of the respondent/defendant in the suit. Now if the defendant found the same to be excessive or if the order suffers from some illegality or irregularity or it is arbitrary, fanciful, void ab initio without jurisdiction or if the same has attained the status of a final order, then writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 will become maintainable. In this regard reference is made to Sikhawat Hussain v. Farzand Bibi and 6 'others 2004 MLD 1834 (Lahore), Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771 (Lahore), Muhammad Khalid Javeed v. Mst. Shahida Parveen and 4 others 2007 YLR 1366 (Lahore), Aamer Mehmood Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105 (Lahore), Abrar Hussain v. Mehwish Rana and 3 others (PLD 2012 Lahore 420) and Nadeem Raza v. Judge Family Court and 3 others 2013 YLR 965 (Lahore)

13. At this stage another issue arises as it is consistent view of the Hon'ble Supreme Court that writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable where factual controversies are involved. In this regard reference is made to the judgment reported as Muhammad Younus Khan and 12 others v. Government of N.W.F.P through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) wherein Hon'ble Supreme Court held as under:--

"It is a consistent view of this Court that in cases where factual controversies are involved, Constitution petition in the High Court is not the proper remedy, Reference can be made to PLD 1980 SC 139; 1980 SCMR 933, 1981 SCMR 291, 1989 SCMR 918 and PLD 1991 SC 476."

14. Similarly in Benedict F.D. Souza v. Karachi Building Control Authority and 3 others (1989 SCMR 918) it was observed that;

"Factual controversies involved in the case, could not be solved without a full fledged trial. Accordingly we find that the approach of the High Court in its discretionary writ jurisdiction to decline relief, to the petitioner, was unexceptionable. No justification has been made out for grant of leave to appeal. The same is refused."

However, after the incorporation of Section 24-A in the General Clauses Act, 1897 which states;

Exercise of power under enactments.--(I) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment.

Further on introduction of eighteenth amendment in the Constitution of Pakistan, Article, 10-A has been inserted which provided as follow:--

Right to fair trial.-- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

It has become obligatory for every court to pass order with reasons. Even otherwise, the principles of natural justice and fair play require the public authority to furnish reasons for every order whether it is executive or judicial order and the order for grant of interim maintenance allowance is not an exception.

15. This court in the case of Mst. Sitwat Chughtai and another v. Judge, Family Court, Lahore and another (PLD 2009 Lahore 18) for administration of justice laid down certain guidelines in the following manner:--

(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964 is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated;

(ii) Family Court should broadly look into social status of parties, earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance;

(iii) For the reason that no right of appeal etc. has been provided against fixation of interim maintenance, such order being tentative and interim in nature, the Family Court should be more careful and precise in such context to ward off any injustice.

16. However, despite the above mentioned guidelines of this court, the interim orders passed by the Family Courts regarding maintenance of the minors are invariably challenged before this court on one or the other ground.

17. It is clear from the preamble of the West Pakistan Family Courts Act, 1964 that the same has been established for protection and convenience of the weaker and vulnerable segments of the society, i.e. women and children. Therefore, interpretation of any and every provision of West Pakistan Family Courts Act, 1964 should be construed to advance the above stated purpose of law i.e. the convenience and protection of the women and children, so it would be convenient and facilitative to the safe administration of justice in the family matters to add and delineate further guidelines in addition to the above stated, which are as follows:--

I. Maintenance allowance is indispensable right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings.

II. Although Section 17-A of the ibid Act empowers Family Court to pass an order for grant of interim maintenance allowance at any stage of the proceedings, in the normality of the circumstances, it must be passed after hearing "both of the, parties" unless the attitude and conduct of the defendant/father is evasive.

III. The order for grant of interim maintenance is made on the basis of tentative assessment of the material available on file and keeping in view the social status of the parties. Further, both the above, material available and social status, should be mentioned in the order for the grata of interim maintenance. Further the quantum of interim maintenance should be "bare minimum" to meet the day to day needs of the recipient in the narrow context.

IV. Although the family laws have been enacted to promote, protect and advance the rights of women and children yet at the interim stage, the version of the respondent/defendant be given a sympathetic or somewhat preferable consideration because, non-payment of interim maintenance allowance will cut throat of his invaluable right i.e. "right to defence" and in consequential effects, children/women would be the losing and deprived parties.

V. Further, if the case is not decided within the statutory period as given in Section 12-A of the West Pakistan Family Courts Act, 1964 either party may apply to the High Court for appropriate direction. However, the order for grant of interim maintenance shall hold the field unless reviewed by High Court under section 12-A or Family Court itself reviews it at any stage as observed below.

VI. Family Court, according to section 12-A of the West Pakistan Family Courts Act, 1964, is under legislative direction to decide the case within six months. Although this provision is directive as no penalty/consequences are mentioned for non-compliance and in this regard reference is made to (2001 SCMR 1001). But in case the matter is not decided within six months and the delay is due to the plaintiff party, then Family Court either on its own motion or on the application of the defendant/father review its earlier order for grant of interim maintenance allowance.

18. It is however necessary to mention here that although provision of review is not provided in the West Pakistan Family Courts Act, 1964, however, in view of the law laid down by the Hon'hle Peshawar High Court in Muhammad Saad Ali and 2 others v. Mst. Maryam Khan and 2 others (2014 CLC 715 wherein it was held as under:--

"The Family Court has got every jurisdiction to adopt any procedure/law to meet the situation to do the substantial justice between the parties and to secure the ends of justice. Since the Act, 1964 ibid is not comprehensive enough to meet every conceivable eventuality. So, the Family Court can adopt every procedure/law in furtherance of dispensation of justice unless the procedure/law going to be adopted is specifically prohibited. The Family Court when came across the situation of failure of the defendants to file written statement, borrowed the provision of striking off defence from the C. P. C. and passed an order in this regard, then the said Court while facing the situation of review of the same can take shelter of non-availability of the provisions of review in the Act, 1964 ibid? No. The Family Court cannot refuse to exercise the jurisdiction on the ground of non-availability of the provision of review. It is the principle of law that recourse to general law is permissible when the provisions of special law are silent on a particular point except where the provisions of general law are inconsistent with the provisions of special law".

Hence in respectful agreement of the view above, the Family Court has

the power to review its own order, however, only to the limited extent and that too if the order under review is due to the reason mentioned in guideline (vi) above OR the order reviewed falls in the settled parameters] of review.

19. Now, I shall advert to the merits of the present case. Admittedly, a suit for recovery of maintenance allowance was filed by respondent/mother on 5-12-2013. The petitioner entered appearance and filed written statement on 4-6-2014. The Family Court while keeping in view prima facie status of both the parties fixed tentative interim maintenance allowance of the minor daughter at the rate of Rs.10,000/- (Rupees Ten thousand only) per month vide order dated 12-7-2014. This order of the Family Court is challenged by both the parties i.e. petitioner/father and respondent/mother through separate writ petitions. Petitioner/father challenged the order on the ground that after filing of the written statement petitioner has lost his job and therefore the amount fixed by the court is on the higher side, whereas respondent/mother has challenged the order being meager on the ground that the same is passed without considering the status of the petitioner/father and without appreciating the expenditure to be incurred on the welfare of the minor.

20. It is an admitted fact that petitioner/father is working in Singapore as Shift Engineer. Respondent/mother has alleged in Para-10 of her plaint that petitioner/father is getting salary of Rs.9,00,000/- per month, whereas petitioner/father denied the contents of said Para in his written statement being incorrect and exaggerated. But failed to mention about his actual salary which he receives from his employer in Singapore. Further perusal of written statement reveals that petitioner is hardly managing to make both ends, meet. Had the petitioner/father attached the proof of his salary along with the detail and proof of his expenses, it would have been easy for the Family Court to fix the interim maintenance allowance of the minor according to the salary of the petitioner/father. In absence of any such proof the interim maintenance was to be fixed by the Court on the basis of social status of the parties. The amount fixed by the Family Court in the case in hand cannot be termed excessive or inconsistent with the ostensible financial status of petitioner/father in the given circumstances.

21. Even otherwise petitioner/father is admittedly father of minor/daughter who is under legal as well as moral obligation to maintain and support her as per injunctions of Islam. The impugned order has been passed under the West Pakistan Family Courts Act, 1964, which could not be assailed in the writ petition because when a statute does not provide any appeal against interlocutory order, same could not be challenged by way of Constitutional petition as it will tantamount to defeat and divest the intent of legislature.

22. In the case in hand, the order passed by the learned Judge Family Court is neither void ab initio nor without jurisdiction. The order impugned is also not a final order as under section 17-A of the West Pakistan Family Courts Act, 1964, Family Court has the jurisdiction to fix the interim maintenance of the minor, therefore, the order cannot be termed to be without jurisdiction.

23. Similarly, the claim of the respondent/mother cannot be entertained as while passing the interim maintenance allowance, Family Court is required to give the bear minimum to the minor. The amount of Rs.10,000/- is sufficient to meet day to day expenses of the minor/daughter who is of only one and half year old.

24. The learned counsel for both the parties failed to point out any illegality or material irregularity in the impugned order. Therefore, both the writ petitions arising from an interlocutory order of learned Judge Family Court, being misconceived and not maintainable are accordingly dismissed with no order as to costs.

25. Before parting with this judgment, I must appreciate the efforts of Mr. Qaiser Abbas, Research Officer who has rendered valuable assistance to ascertain the case- law on the subject.

ZC/A-188/LPetition dismissed.