The Family Court Act, 1964 is a special statute and has been enacted with a specific purpose to ensure expeditious settlement and disposal of disputes relating to marriage and family affairs and matters connected therewith.

 2022 CLC 89

The Family Court Act, 1964 is a special statute and has been enacted with a specific purpose to ensure expeditious settlement and disposal of disputes relating to marriage and family affairs and matters connected therewith. It, inter alia, has conferred upon the Family Court, powers under section 17-A of the Act, to grant interim maintenance to the concerned parties during the pendency of proceedings. The purpose behind this provision is to ensure that during pendency of these proceedings, affected minors are not faced with financial constraints.

--The counsel for the petitioner laid great emphasis on the fact that the mother of the child is a well-placed government doctor with a comfortable source of income and that this should have been a consideration for the Family Judge while passing the order under challenge. This argument is indeed naïve and fails to take into account the fact that there is a huge gender gap in comparing a man who earns and without custody as opposed to a woman with an autistic child. Time is also money. The mother will very likely have to take leaves from work to take the child to society visits and school meetings. There is also a lot of work regarding therapy and she will have to dedicate multiple hours to do therapy exercises with the child. The mother often needs house help at home. The mother may have to take off days in case the child is having a meltdown or any other issue crops up. The mother might hire an assistant for work just to focus on her child or even hire trained house help to take care of her child so that she can focus on work. It costs extra money just to save time and vice versa. It may be added here that most workplaces are not accommodating or tolerant enough and there will most likely be pay cuts and less chances for raise. The mother will not be able to put in extra hours and she certainly will not have time for securing multiple streams of income. Her career progression will be impacted and with the child getting older more expenses will be required and the mother will most likely be in a deeply difficult situation. The argument of the counsel for the petitioner, therefore, cannot make much headway.

--The writ petition may also not be competent because the main suit is still pending and the Family Court is yet to render its final verdict. The order fixing interim maintenance has not attained the status of a final order. The legislature has deliberately kept such an order outside the ambit of appeal (see: Section 14(3) of the Family Courts Act, 1964). In these circumstances, when the Legislature has specifically prohibited the filing of an appeal against an interim order, if the present constitutional petition is perpetuated, it would tantamount to defeating and diverting the intent of the Legislature.

-- Does the Family Court have un-fettered and un-bridled powers to fix interim maintenance at its discretion? The answer, of course, is no, the concept of subjective discretion having been judicially buried! The Court may, therefore, broadly look into the social status of the parties, the earning of the defendant, his capacity to pay, the requirements of the minor and on this touchstone fix interim maintenance. It may also be noted that no right of appeal etc. has been provided against such a determination, because the order is tentative and interim in nature. The Court has uninhibited powers to enhance or decrease the quantum of maintenance eventually after appraising, deciphering and examining the evidence produced during trial. Therefore, findings qua interim maintenance normally cannot be interfered with, if the same are fixed upon the parameters stated above.