While framing the issues and passing the order of interim maintenance, the Family Court shall take into consideration following crucial questions

 Though by virtue of Section 17-A of The Act Family Court was vested with the power to strike off the defence of the defendant and decree the suit on failure by him to pay the interim maintenance in terms of order of the Court but it will not equip the Court with unfettered powers to proceed mechanically. In no circumstances, a Court can abdicate its prime duty to foster justice as per canons of law. It is trite law that Court cannot proceed in vacuum and exercise judicial powers arbitrarily and whimsically. Before invoking a penal provision like section 17-A of The Act the Court was supposed to consider as to whether it was vested with the power to pass the order of interim maintenance, which was not done at all.

While framing the issues and passing the order of interim maintenance, the Family Court shall take into consideration following crucial questions: -

i.Who has the primary responsibility to maintain children; parents or grandparents?

ii.Whether in Christian faith, a grandfather is liable to maintain his grandchildren, especially in the presence of mother of the children? If yes, to what extent?

iii. What is the extent of a mother’s liability to maintain her children?

iv. Can the Plaintiff’s mother be categorized as “poor” and “unemployable” so as to excuse her from primary responsibility for her children’s maintenance?

Would it not be appropriate to require evidence of income of the Plaintiffs’ mother so as to determine whether she is “poor” and incapable of maintaining her children?

v. Whether, in the absence of any guidance in the Christian faith, principles of Islamic Law may be invoked in this case, and what will be the result of their application to the facts and circumstances of this case?

vi.Can it be said that the grandfather stands in loco parentis to his grandchildren when their mother has their custody and/ or guardianship?

vii.How long are the Plaintiffs entitled to receive maintenance? Issue No.1 specifically pertains to this question. However, both learned Courts below have simply held that the Plaintiffs are entitled to receive maintenance from the Defendant “till the time when they will be legally barred from being maintained by the defendant”, without categorically deciding when the legal bar will operate.

viii.If the claim of the Plaintiffs is not on the basis of minority but on basis of being poor relatives, even then, can the grandfather, who is of advanced age, be held liable for their maintenance in the presence of the mother and other relatives? If yes, to what extent?

Writ Petition-Family-Maintenance

38-14

BASHIR MASIH VS SUNEELA NADEEM ETC

Mr. Justice Mirza Viqas Rauf 29-04-2022

2022 LHC 3442