PLJ 2009
----S. 17-A--Constitution of
[Pp. 110 & 111] A & B
2007 MLD 41; 1996 MLD 1057; KLR 1985 Civil Cases 585; 1989 SCMR 918; 1981 SCMR 291; PLD 1991 SC 476; 1993 SCMR 618; 1993 SCMR 515; 1991 SCMR 2136; 1999 SCMR 1447; NLR 1987 CLJ 459, 2001 PTD 3948, ref.
Ms. Khalida Perveen, Advocate for Petitioners.
Date of hearing: 11.9.2008.
PLJ 2009 Lahore 108Present: Syed Asghar Haider, J.Mst. SITWAT CHUGHTAI and another--PetitionersversusJUDGE FAMILY COURT, LAHORE and another--RespondentsW.P. No. 11373 of 2008, decided on 11.9.2008.
Order
Petitioners filed a suit for recovery of dower for Petitioner No. 1 and maintenance allowance for Petitioner No. 2. Respondent No. 2 entered appearance, filed a written statement, contested the suit, of the pleadings of the parties issues were framed and the learned Family Court also fixed interim maintenance in the sum of Rs. 1200/- per month for Petitioner No. 2. Petitioners are aggrieved of fixation of interim maintenance and pray that the same may be enhanced, hence the instant petition.
2. Learned counsel contended that Respondent No. 2 is a man of means and his monthly salary is around Rs. 1,25,000/-, Petitioner No. 2, is a minor and a school going boy, his boarding, lodging and ancillary expenses are about Rs.25,000/- per month to which the Petitioner No. 1 has to cater, therefore, the amount of Rs.1200/- fixed as interim maintenance by the learned Family Court is too meagre to defray these expenses, as such it be enhanced. To further augment her submissions, learned counsel submitted that this Court has ample powers to interfere in interlocutory orders even if they are tentative in nature. To fortify her contentions, the learned counsel referred to Makhdoom Ali vs. Mst. Razia Sultana and others (2007 MLD 41), Muhammad Sarwar vs. Sughran Bibi and 2 others (1996 MLD 1057) and Mst. Shereen Masood vs. Malik Naseem Hassan Judge, Family Court,
3. Heard.
4. 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 also matters connected therewith. It, inter alia, has bestowed upon the Family Court powers under Section 17-A of the Act ibid to grant interim maintenance to the concerned parties during the pendency of the proceedings. It also has been mandated that such maintenance shall be paid by the 14th day of each calendar month and in case of default the defense of the defendant shall be struck off and the suit decreed. The purpose behind this legislation is to ensure that during pendency of these proceedings with the Family Court financial constraints faced by the minors are ameliorated. The question now arises that does the Family Court have un-fettered and un-bridled powers to fix interim maintenance at its discretion or is it required to proceed on pragmatic, rationale and judicial basis. The answer, of course, is that it should proceed on the later. It should 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 also is noteworthy that no right of appeal etc. has been provided against this fixation, because the order is tentative and interim in nature, therefore, the family Court should be even more careful and precise in this context to ward off any injustice. However, this order is subject to final review after recording evidence of both parties, thus the quantum of maintenance can thereafter be easily determined and fixed accurately. The Court has uninhibited powers to enhance or decrease the quantum of maintenance 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. In the present matter, in the plaint, a demand for maintenance for the minor has been raised in the sum of Rs. 25,000/- while controverting the assertion of the plaintiffs in para 4 of the written statement the salary of the defendant in the sum of Rs. 1,25,000/- is admitted, however a detail of his expenses which comes to Rs. 1,10,440/- has been stated. Unfortunately, there are no details in the plaint regarding the quantum of school fee and other expenses of the minor but only a figure of Rs.25,000/- has been stated, therefore, it is impossible to determine the veracity of the claim of either party, without recording evidence. This exercise is not possible in the present jurisdiction, especially if the finding is only tentative and not final and the order is also interim in nature. And also because proper fixation of maintenance has to be fixed by the family Court after recording of evidence. I am fortified in this context by the following precedents F.D. Souza vs. Karachi Building Control Authority and 3 others (1989 SCMR 918), Khawaja Muhammad Akhtar vs. President Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another (1981 SCMR 291), Federation of Pakistan and 2 others vs. Major (Retd.) Muhammad Sabir Khan (PLD 1991 SC 476), Muhammad Younus Khan and 12 others vs. Government of NWFP through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Mst. Mariam Bai and others Vs. Islamic Republic of Pakistan and 5 others (1993 SCMR 515), Mushtaq Hussain Bokhari Vs. The State and 6 others (1991 SCMR 2136), Mohtarma Benazir Bhutto M.N.A. and Leader of the Opposition, Bilawal House, Karachi Vs. The State (1999 SCMR 1447), Mian Ghulam Dastgir
5. As far as the precedents referred to by the learned counsel for the petitioner are concerned, they are persuasive and not binding and even distinguishable on facts, thus of not much help to the cause of the petitioner.
6. But as the petition emanates of a family matter and admittedly the minor's need have to catered to in a reasonable manner to ward off any hardship, therefore, the Family Court is directed to conclude trial within two months from today, in accordance with law, on merits, without fail. It shall keep especially in mind the needs of the minor and his monthly expenses and also the monthly salary of the defendant and the parameters referred to above, before fixing the final maintenance of the minor.
With these observations the petition is dismissed in limine.
(J.R.) Petition dismissed
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