عبوری خرچہ لگانے کے لیے ٹرائل کورٹ کو گائیڈ لائن

 2021 M L D 337

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

----S.17-A---Interim maintenance forminors---Scope---Purpose behind interim maintenance is to ensure that duringpendency of suit before Family Court, financial constraints faced by minors areameliorated.

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

----Ss.1-A &17-A---Constitution of Pakistan,Art. 199---Constitutional petition---Maintainability---Interlocutoryorder---Delay in conclusion of trial---Suit for recovery ofmaintenance---Father of minor was aggrieved of interim maintenance fixed byFamily Court on the plea that the same was exorbitant---Validity---FamilyCourts Act, 1964 was a special law barring right of appeal or revision againstinterim maintenance order---Constitutional petition against order under S.17-Aof Family Courts Act, 1964, was maintainable only if such interim order wascoram non judice, wholly or without jurisdiction or based on malafide---Quantum of interim maintenance could not be made a ground for invokingConstitutional jurisdiction of High Court---Trial was not concluded within aperiod of six months as prescribed by S.12-A of Family Courts Act, 1964---HighCourt directed Family Court to decide suit for recovery of maintenance within aperiod of two months so that petitioner could be burdened with interimmaintenance for two months only---Order of interim maintenance wouldsubsequently merge into final judgment---Constitutional petition was dismissedin circumstances.

Syeda Farhat Jehan v. Syed lqbal HussainRizvi 2010 YLR 3275; Munir Alam v. Civil Judge, Family Court, Lahore 2009 CLC442; Abrar Hussain v. Mehwish Rana PLD 2012 Lah. 420; Shahid Ali Gil v. Mst.Ruqayya Bano 2015 MLD 265; Ali Adnan Dar v. Judge, Family Court PLD 2016 Lah.73 and Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447 ref.

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

----S. 17-A---Interimmaintenance---Quantum---Family Court to adopt a pragmatic approach and fixinterim maintenance---Principles enumerated.

Following are the principles for fixationof interim maintenance:

i. Financial status of father shall be keptin view, which should be based upon salary slips, bank statements, income taxrecord, and business income reflected on record or through any otherdocumentary proof placed by either side in the Court.

ii. Interim maintenance should be fixed not on hardand fast principles, rather based upon a tentative view.

iii. Maintenance should not be fixed on a higherside, which may result into technical knockout of the father so that he couldnot able to pay the interim maintenance, therefore, his option should also beconsidered for payment of interim maintenance, which he agrees to pay beforethe Family Court.

iv. In cases, where father has not explained hismonthly income or his financial status in the pleadings, rather concealed hisincome, the Family Court can rely upon the facts narrated in plaint or on thebasis of attached documents vis-a-vis the needs of minor and the verbal stancegiven by father without reference to his written statement will not beconsidered justified, hence the Family Court shall exercise discretion to fixthe interim maintenance while applying the above principles.

v. In cases, where determination of adequacyor inadequacy of quantum of maintenance requires factual inquiry and evidencein trial, the maintenance should be fixed after consultation with the fatherand mother as well as keeping in view the day-to-day requirements of minor.

vi. The needs of minor should be considered onthe basis of social stratification of family in which minor has been broughtup.

vii. The financial status of father could also beconsidered on the basis of facts narrated in pleadings of the parties, whichincludes the living standard and previous matrimonial life of the parties inwhich the mother/wife has been provided with particular kind of living, housingfacilities, transportation, gifts, immovable properties of husband and thelifestyle in which husband/father was living prior to separation or divorce orbefore the institution of suit for maintenance.

viii. In cases, where father being civil servant oremployee of any organization. department or company has not appended his salaryslips or bank statements, the Family Court shall ask for an undertaking oraffidavit regarding his salary and thereafter shall fix the interimmaintenance, however after the trial of the case, if the court comes to theconclusion that at the time of fixation of interim maintenance allowance thefather/husband has stated a fact beyond his pleadings or undertaking, which isfound to be false, such father be burdened with heavy costs and action ofperjury may also be initiated against him.

ix. The Family Court may also call the employerof father, HR department, admin department, bank managers, land revenuedepartment, tax record, and banking details as well as salary details of thefather directly from the relevant offices while deciding the question ofinterim maintenance for a prima facie view to fix the allowance in favour ofminor so that no inadequacy is attributed while fixing the maintenanceallowance.

MuhammadSaqib Bhatti for Petitioner.

Ms.Saima Uzman Chatha for Respondents.

Dateof hearing: 17th August, 2020.

 2021 M L D 337
[Islamabad]
Before Ghulam Azam Qambrani, J
MUHAMMAD TOUSEEQ DANIAL BHATTI---Petitioner
Versus
AYESHA NAEEM and 2 others---Respondents
Writ Petition No. 1780 of 2020, decided on 25thAugust, 2020.

JUDGMENT

GHULAM AZAM QAMBRANI, J.---Through this petition the petitioner hasinvoked the jurisdiction of this Court filed under Article 199 of theConstitution of Islamic Republic of Pakistan, 1973 with the following prayer -

"Itis, therefore, respectfully prayed that impugned order dated 02.03.2020 passedby learned Judge Family Court may please be set aside in the best interests ofjustice.

Anyother relief which this Hon'ble Court deems fit and just also be awarded infavour of the petitioner."

2. Briefly stated facts of the instant petitionare that the respondents filed a suit for recovery of maintenance of respondentNo.2/minor at the rate of Rs.84,000/- per month stating therein that thepetitioner is running the business of restaurant in the name and style of"Bhatti Snack Bar" at Rose and Jasmine Garden, Islamabad and he isearning Rs. 5,00,000/- per month and he can easily pay the claimed maintenanceof the minor. It has been further averred in the plaint that the minor isschool going. Her school fee, transportation, medical, food, clothing and otherexpenses are more than Rs.89,590/- per month. The petitioner /defendant,contested the suit on factual as well as on legal grounds by filing writtenstatement and stating therein that "Bhatti Snack Bar" is not arestaurant, rather the same is a "Khokha" which is sole ownership ofpetitioner's disabled elder brother namely Muhammad Taufeeq Umar; that he is ajobless person and has no source of income; that he just helps his brother andhe can only pay Rs.5000/- per month to the minor as maintenance allowance.

3 The learned Trial Court after hearing theparties tentatively made an assessment and fixed an amount of Rs.20,000/- permonth as interim maintenance allowance for the minor vide order dated02.03.2020. Feeling aggrieved, the petitioner has filed instant petition.

4. Learned counsel for the petitioner hascontended that the impugned order has been passed without any reasoning,therefore, the same is hit by Section 24 of the General Clauses Act; that thelearned Trial Court without any evidence just on the pleading of therespondent/ plaintiff has fixed the maintenance allowance at the rate ofRs.20,000/- per month whereas this amount is not possible from his insufficientsource of income. Next contended that the petitioner is dependent upon hisdisabled brother, who is running the "Khokha" for his livelihood andhis elder brother is also paying monthly Rs.5000/- for the minor. Lastly prayedfor acceptance of writ petition and for reduction in maintenance allowance.

5. Conversely, learned counsel for therespondent has opposed the contention raised by the learned counsel for thepetitioner contending that no maintenance has been deposited by the petitionerfor the minor. The minor is school going. The learned Trial Court has rightlyassessed the monthly maintenance at the rate of Rs.20,000/- per month and urgedfor dismissal of the instant petition.

6. I have heard the arguments of learnedcounsel for the parties and have perused the material available on record.

7. Perusal of the record reveals that therespondent has filed a suit for maintenance of the minor, who is in the custodyof respondent No.1. The learned Trial Court on submission of written statement,has assessed an amount of Rs.20,000/- per month for the financial needs of the minor,as interim maintenance allowance.

8. The learned Judge, Family Court, had passedthe impugned order in terms of the provisions of Section 17-A of the WestPakistan Family Courts Act, 1964, which was added to the Pakistan Family CourtsAct, 1964 vide Ordinance No.IV of 2002. Under Section 17-A ibid, a Family Courthas the jurisdiction to pass an interim order for maintenance at any stage ofthe proceedings in a suit for maintenance. Where such interim maintenance isfixed, payment is required to be made on the fourteenth day of each monthfailing which the Family Court is empowered to strike off the defense of thedefendant and decree the suit.

9. The purpose behind the provision of interimmaintenance is to ensure that during the pendency of the suit before thelearned Judge Family Court, financial constraints faced by the minors areameliorated.

10. The stance taken by the petitioner in hispetition did not persuade me to interfere in the impugned order, which isinterim in nature. The petitioner, who is the father of the minor, cannotexpect her mother to keep her and also to pay all her expenses. However, thepetitioner is under a legal as well as a moral obligation to maintain andsupport his children, more so when they are minors.

11. In this regard, I am fortified by the law laiddown in the case of Syeda Farhat Jehan v. Syed lqbal Hussain Rizvi (2010 YLR3275) wherein it has been held as under:--

"Theright of maintenance is natural right of minor children and their father couldnot be allowed under any circumstance to be negligent about the same.Furthermore, it was held that it was the legal and moral duty of a father asthe natural guardian of his minor children to keep maintaining them. No excuse,big or small could absolve a father from his duty of maintaining his minor asguardian through the divine relation of Almighty Allah."

12. Perusal of the record reveals that theimpugned order passed by the learned Judge Family Court, is only aninterlocutory order. The maintenance fixed through such an interim order isonly temporary. As and when, the final order is passed the amount fixed by thelearned Judge, Family Court, may be modified and revisited in that the quantumof maintenance can be increased or decreased after appraising, evaluating and examiningthe evidence produced by the both the parties. The impugned order fixing theinterim maintenance of Rs.20 000/- per month for the minor child of thepetitioner is not the kind of an order that warrants interference in theconstitutional jurisdiction of this Court. In the cases of Munir Alam v. CivilJudge, Family Court, Lahore (2009 CLC 442), Abrar Hussain v. Mehwish Rana (PLD2012 Lahore 420) and Shahid Ali Gil v. Mst. Ruqayya Bano (2015 MLD 265). TheHon'ble High Courts have dismissed Writ Petitions against orders fixing interimmaintenance. Furthermore, in the case of Ali Adnan Dar v. Judge, Family Court(PLD 2016 Lahore 73), the Hon'ble Lahore High Court did not entertain a WritPetition against an interim order under Section 17-A of the West PakistanFamily Courts Act, 1964 fixing an amount to be paid as an interim maintenance.The said judgment enumerates the following guidelines to be followed in mattersregarding interim maintenance:-

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

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

Ill.The order for grant of interim maintenance is made on the basis of tentativeassessment of the material available on file and keeping in view the socialstatus of the parties. Further, both the above, material available and socialstatus, 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 therights of women and children yet at the interim stage, the version of therespondent/defendant be given a sympathetic or somewhat preferableconsideration because, nonpayment of interim maintenance allowance will cutthroat of his invaluable right i.e. "right to defence" and in consequentialeffects, children/women would be the losing and deprived parties.

V.Further, if the case is not decided within the statutory period as given inSection 12-A of the West Pakistan Family Courts Act, 1964 either party mayapply to the High Court for appropriate direction. However, the order for grantof interim maintenance shall hold the field unless reviewed by High Court undersection 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 FamilyCourts Act, 1964 is under legislative direction to decide the case within sixmonths. Although this provision is directive as no penalty/consequences arementioned for non-compliance and in this regard reference is made to (2001 SCMR1001). But in case the matter is not decided within six months and the delay isdue to the plaintiff party, then Family Court either on its own motion or onthe application of the defendant/father review its earlier order for grant ofinterim maintenance allowance."

In the case reported as Mohtarma Benazir Bhutto v.The State (1999 SCMR 1447), it has been held as under:-

"Ordersat interlocutory stages should not be brought to higher courts to obtain pragmaticorders as it intends to harm the advancement of fair trial, curtailing remediesunder the law, and even reducing the right of appeal."

13. One of the grounds taken by the petitioner inhis writ petition is that he is dependent upon his disabled brother, who isrunning a "Khokha" for his livelihood and his elder brother is alsopaying monthly Rs.5000/- for the minor whereas stance of the respondent is thatthe petitioner is running the business of restaurant in the name and style of"Bhatti Snack Bar" at Rose and Jasmine Garden, Islamabad and he isearning Rs.5,00,000/- per month. By taking this ground petitioner has raised afactual dispute, which cannot be resolved without the recording of evidence. Onaccount of this factual controversy, the instant petition is not maintainable.Reliance in this regard is placed upon the cases reported as "Col. ShahSadiq v. Muhammad Ashiq and others" (2006 SCMR 276). "Muhammad SaleemBhatti v. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957) and MuhammadShahbaz Khalid v. Judge Family Court, Lahore (PLD 2013 Lahore 64).

14. Section 14(3) of the West Pakistan FamilyCourts Act, 1964. bars an appeal or revision against an interim order passed bya Family Court. The filing of Writ Petitions against interim orders passed bythe Family Courts is to be discouraged because an aggrieved party will have aright to agitate his grievance before the appellate Court when the interimorder merges into a final order. The West Pakistan Family Courts Act, 1964,being a special law barring a right of appeal or revision against an interimmaintenance order, a writ petition against an order under Section 17-A of thesaid Act, would be maintainable only and only if such an interim order is coramnon judice, wholly without jurisdiction or based on mala fides. The quantum ofthe interim maintenance cannot be made a ground for invoking the constitutionaljurisdiction of this Court.

15. Keeping in view the above facts andcircumstances, it can safely be held that the father should not be punished byway of interim maintenance allowance order so that he would not be able to paythe maintenance and resulted into consequences provided in Section 17-A of theFamily Courts Act, 1964, therefore, it is the imperative duty of the FamilyCourt to adopt a pragmatic approach and fix the interim maintenance on thefollowing principles:

i. Financialstatus of father shall be kept in view, which should be based upon salaryslips, bank statements, income tax record, and business income reflected onrecord or through any other documentary proof placed by either side in theCourt.

ii. Interimmaintenance should be fixed not on hard and fast principles, rather based upona tentative view.

iii. Maintenanceshould not be fixed on a higher side, which may result into technical knockoutof the father so that he could not able to pay the interim maintenance,therefore, his option should also be considered for payment of interimmaintenance, which he agrees to pay before the Family Court.

iv. Incases, where father has not explained his monthly income or his financialstatus in the pleadings, rather concealed his income, the Family Court can relyupon the facts narrated in plaint or on the basis of attached documentsvis-a-vis the needs of minor and the verbal stance given by father withoutreference to his written statement will not be considered justified, hence theFamily Court shall exercise discretion to fix the interim maintenance whileapplying the above principles.

v. Incases, where determination of adequacy or inadequacy of quantum of maintenancerequires factual inquiry and evidence in trial, the maintenance should be fixedafter consultation with the father and mother as well as keeping in view theday-to-day requirements of minor.

vi. Theneeds of minor should be considered on the basis of social stratification offamily in which minor has been brought up.

vii. Thefinancial status of father could also be considered on the basis of factsnarrated in pleadings of the parties. which includes the living standard andprevious matrimonial life of the parties in which the mother/wife has beenprovided with particular kind of living, housing facilities, transportation,gifts, immovable properties of husband and the lifestyle in whichhusband/father was living prior to separation or divorce or before theinstitution of suit for maintenance.

viii. Incases, where father being civil servant or employee of any organization,department or company has not appended his salary slips or bank statements, theFamily Court shall ask for an undertaking or affidavit regarding his salary andthereafter shall fix the interim maintenance, however after the trial of thecase, if the court comes to the conclusion that at the time of fixation ofinterim maintenance allowance the father/husband has stated a fact beyond hispleadings or undertaking, which is found to be false, such father be burdenedwith heavy costs and action of perjury may also be initiated against him.

ix. TheFamily Court may also call the employer of father, HR department, admindepartment, bank managers, land revenue department, tax record, and bankingdetails as well as salary details of the father directly from the relevantoffices while deciding the question of interim maintenance for a prima facieview to fix the allowance in favour of minor so that no inadequacy isattributed while fixing the maintenance allowance."

16. Keeping in view the above principles, when thepetitioner/father has taken the plea that he is dependent upon his disabledbrother, who is running a "Khokha" for his livelihood and his elderbrother is also paying monthly Rs.5000/- for the minor, he could not pay theinterim maintenance allowance of Rs.20,000/- per month to the minor, whichprima facie, seems to be exorbitant at this stage, but this Court, inconstitutional jurisdiction, is not able to determine this factual aspect ofadequacy or inadequacy of the interim maintenance allowance on the basis ofprinciples laid down by the superior Courts, where such order could not beassailed in constitutional jurisdiction. Perusal of record reveals that thesuit before the learned Trial Court was filed on 14.09.2019 and the same hasnot been concluded within a period of six months as prescribed by Section 12-Aof the West Pakistan Family Court Act, 1964, therefore, in order to meet endsof justice, the Judge Family Court is directed to decide the suit for recoveryof maintenance, filed by respondents Nos.1 and 2, preferably within a period oftwo months so that the father/petitioner could only be burdened with theinterim maintenance for two months only, which would subsequently be mergedinto final judgment.

17. In view of what has been discussed above, thispetition is hereby dismissed with the direction to the Judge Family Courtseized with the matter to conclude the suit within two months after receipt ofthis order.

18. The observations hereinabove are tentative innature and shall not prejudice the case of the parties at the time of finaladjudication of the case.

MH/129/Isl. Petition dismissed.