In Pakistan, the maintenance with regard to Muslim children is governed by the Injunctions of Islam and in other cases as per applicable personal law and the provisions of the Family Courts Act, 1964 in this regard essentially govern jurisdiction and procedure.

The jurisdiction and procedure of Family Courts in Pakistan is, inter alia Courts Act, 1964.

On perusal of section 17A(1) of the Act, it is manifest that in a suit for maintenance, the Family Court is required to pass an order fixing interim monthly maintenance for wife or a child. The use of word “shall”, on the face of it, indicates that the said requirement is imperative in character. Such an order is required to be passed on the date of the first appearance of the defendant. The purpose or object of such a mandatory requirement apparently is to ensure subsistence of wife or child till final determination of his or her entitlement qua the maintenance. The interim monthly maintenance so fixed by the Court is payable by fourteenth day of each month. A sanction has been created by the legislature in the form of striking off defence of the defendant followed by a decree to be passed to guard against failure of the defendant to pay interim monthly maintenance in compliance of the order of the Court. The striking off of the defence in the case of default in the payment of interim maintenance is mandatory and no discretion in this regard is conferred upon the Court. Likewise, the striking off of the defence in such cases is automatic (i.e. not dependent upon any order of the Court in this regard), which is reflected from the use of legislative expression “the defence of the defendant shall stand struck off”. The expression “defence struck off” means the defendant would not be entitled to rely on any defence set up by him in his Written Statement and the Court would not give any weight to the same, however, the Court has been required by the legislature to decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case. Being a clause contemplating penal consequences for failure to pay the maintenance, it has to be strictly construed, therefore, the decree passed in terms of Section 17A(1) ibid is confined to the claim for maintenance and shall not cover any other claim of the plaintiff before the Family Court.

The primary question involved in this case is whether the decree passed by the Family Court for the recovery of maintenance under Section 17A(1) of the Act can only be for the period commencing the date of decree and not prior to that? To answer that question, it is imperative to refer to certain fundamental principles governing the grant of relief in suits. For it to succeed, the claim of a party against another must be based on a cause of action i.e. infringement of a right, title or interest recognized by law of the land. Generally speaking, in civil litigation, the entitlement to any relief covers the period commencing accrual of the cause of action. Such entitlement may, however, be controlled, curtailed or restricted by an appropriate legislature by express words or necessary implications. Additionally, in cases where claimants succeed in establishing a cause of action but without proof of the exact date of accrual thereof, relief is usually granted from the date of institution of the suit. If a cause of action is recurring or continuous one, the relief is granted for the future period covering entitlement of the claimant.

W.P.No.1787 of 2022
Syed Ahmad Sher. Versus Addl. District Judge, etc.